Section 14-2-9. Procedure for Inspection
The Law
A. Requested public records containing information that is exempt and nonexempt from disclosure shall be separated by the custodian prior to inspection, and the nonexempt information shall be made available for inspection. If necessary to preserve the integrity of computer data or the confidentiality of exempt information contained in a database, a partial printout of data containing public records or information may be furnished in lieu of an entire database. Exempt information in an electronic document shall be removed along with the corresponding metadata prior to disclosure by utilizing methods or redaction tools that prevent the recovery of exempt information from a redacted electronic document.
B. A custodian shall provide a copy of a public record in electronic format if the public record is available in electronic format and an electronic copy is specifically requested. However, a custodian is only required to provide the electronic record in the file format in which it exists at the time of the request.
C. A custodian:
(1) may charge reasonable fees for copying the public records, unless a different fee is otherwise prescribed by law;
(2) shall not charge fees in excess of one dollar ($1.00) per printed page for documents eleven inches by seventeen inches in size or smaller;
(3) may charge the actual costs associated with downloading copies of public records to a computer disk or storage device, including the actual cost of the computer disk or storage device;
(4) may charge the actual costs associated with transmitting copies of public records by mail, electronic mail or facsimile;
(5) may require advance payment of the fees before making copies of public records;
(6) shall not charge a fee for the cost of determining whether any public record is subject to disclosure; and
(7) shall provide a receipt upon request.
D. Nothing in this section regarding the provision of public data in electronic format shall limit the ability of the custodian to engage in the sale of data as authorized by Sections 14- 3-15.1 and 14-3-18 NMSA 1978, including imposing reasonable restrictions on the use of the database and the payment of a royalty or other consideration.
Commentary
RECORDS CONTAINING EXEMPT AND NONEXEMPT INFORMATION
In some instances, a record kept by a public body will contain information that is exempt from the right to inspect as well as information that must be disclosed. The Act requires the applicable records custodian to separate out the exempt information in a file or document before making the record available for inspection. The fact that a file may contain some information that may not be disclosed does not protect all the information from public disclosure.
Example 55:
A state licensing board receives many requests from disgruntled citizens to inspect the files of its licensees. Mindful of the problem of confidentiality, the board may keep two files for each licensee. One containing public information, such as test scores and personal, educational and financial information required for licensure, and the other containing letters of reference exempted from disclosure under Section 14-2-1(A)(2).
Commentary
As discussed above, where protected and public information are contained in the same document, the records custodian may redact or block out the protected information before providing the document to the public or including it in the file available for inspection.
If the record requested is a database maintained by a public agency, the Act provides that a partial printout of data containing public records or information may be furnished rather than the entire database, if necessary to preserve the integrity of the database or confidentiality of exempt information contained in the database.
For requests to inspect records in electronic format, the Act requires the custodian to remove exempt information and corresponding metadata from the records prior to disclosure. The Act requires the custodian to use methods or redaction tools that prevent the recovery of exempt information from a redacted electronic record.
ELECTRONIC COPIES
A custodian must comply with a specific request for a copy of a public record in electronic format if the record exists in electronic format. However, the requester is not entitled to specify the file format of the electronic copy. The Act requires only that the custodian provide the electronic record in the file format in which the record exists at the time of the request.
Example 56:
A person files an inspection request seeking public records reflecting the salaries of the public body’s employees. The requester asks to inspect an electronic copy of the records in Microsoft Word format. The public body uses Word Perfect and does not have the requested records in Word format. The public body is only required to provide the requester with the electronic copy in Word Perfect.
COPY FEES
A records custodian may charge reasonable fees for copying public records.
Printed copies. A custodian may not charge more than one dollar per printed page for documents that are 11 inches by 17 inches or smaller. If a document is larger than 11 inches by 17 inches, custodian may charge more than one dollar if it reasonably reflects the increased cost to the public body of copying oversized printed documents.
Downloaded copies. A custodian may charge the actual costs of downloading copies of public records to a computer disk or other storage device, including the actual cost of the storage device.
Transmitting copies. A custodian may charge the actual costs of transmitting copies of public records by mail, e-mail, or facsimile.
Unless otherwise allowed by law, any fee charged by a public body may reflect only the actual cost of copying. This may include the actual costs to the public body for making and transmitting copies, including any personnel time involved. The Act does not allow a custodian to charge for the cost of determining whether a particular public records is or is not subject to disclosure.
Example 57:
A state agency makes copies of public records for requesters on its copy machine. The actual cost to the agency for this service is approximately 50 cents per page. This includes the cost of paper and employee time involved in the copying process. Under these circumstances, the amount charged per page for copies is reasonable.
Example 58:
Most requests to inspect the public records of XYZ Mutual Domestic Water Users Association ask that copies of the requested records be mailed to the requester. Because of the increased mailing costs, the Association decides to amend its procedures for inspection of public records by adding a fee for mailing copies of printed public records. The amount of the fee is limited to the cost of postage. This fee reflects the actual costs associated with transmitting copies of public records by mail and is permitted by the Act.
Commentary
A records custodian may require a person to pay before the custodian makes copies. This does not permit the custodian to require payment in advance of allowing inspection. Rather, the custodian should provide the records for inspection, and, if the requester subsequently requests copies of particular records, the custodian may require payment in advance for the pages designated for copying. The Act requires that if the requester requests a receipt for the amount paid for copies, the custodian must provide one.
SALE OF DATA
Although the Act requires a public body to provide copies of public records in electronic format when requested, the Act makes clear that it does not limit a custodian’s authority to sell data under NMSA 1978, Sections 14-3-15.1 and 14-3-18.
Section 14-3-15.1 requires state agencies to make printed or hard copies of its computer databases available for inspection under the Act. However, if a person requests an electronic copy of a state agency database, Section 14-3-15.1 permits the agency to limit the use of the database and to require payment of a royalty or other consideration.
Example 59:
A private business provides information about state property taxes to paying subscribers across the United States. The business makes a request for electronic copies of the state tax department’s entire property tax database, excluding exempt information, and requests that updates to the database be provided on a monthly basis. The tax department agrees to provide electronic copies of the database, including monthly updates, if the business pays a royalty and meets the other requirements of Section 14-3-15.1. If the business refuses to pay the royalty, the department is under no obligation to provide the business with an electronic copy of the database.
In this case, the private business was not interested in obtaining a hard copy of the database. Had the business requested a printed copy of the database rather than an electronic copy, the department would have been required to comply with the request and provide the printed copy in accordance with the Inspection of Public Records Act.
Commentary
Section 14-3-18 gives counties and municipalities authority to charge fees for electronic copies of their computer databases. It allows a county or municipality to charge a reasonable fee for an electronic copy of a computer database based on the cost of materials, making an electronic copy and personnel time to research and retrieve the electronic record.