Expert: District’s new public-records policy ‘far cry’ from law language
‘Nothing in this administrative regulation prohibits the superintendent or designee from denying access to public records,’ policy reads
Before Jan. 10, 2012, a Wyoming school district didn’t have a policy that would make it more difficult to obtain public records paid for by taxpayers.
Before Dec. 12, there wasn’t a much stingier one, of which an expert in open government law remarked that “paying (into) that policy is a far cry from what is a reasonable fee to inspect public records that the public has paid to either create or obtain in the first place.”
“Reasonable fee” is the language of a provision of the Wyoming Public Records Act concerning a cost someone “may” levy for “searching (a) database and preparing a report from that database information.”
Among the stipulations of the policy, which the Sweetwater County School District №2 Board of Trustees passed at its Dec. 12 board meeting:
“Nothing in this administrative regulation prohibits the superintendent or designee from denying access to public records as provided by law”;
An allowance for the collection of fees before the district would even send records (“There’s nothing in the Act that they can charge an advance,” Wyoming Press Association Attorney Bruce Moats said);
The district “is not required to provide” “an estimated date that electronic records will be made available”;
A price that seemingly would be exceeded, that allows it not to “expend additional agency resources” — unless the requester of the records expresses in a way that could be legally binding that it would pay a fee that isn’t even known yet;
Charges for rates that are perhaps higher than that which those hired to perform similar tasks are usually paid.
But the Public Records Act, while providing exceptions, actually says things like “all public records shall be open for inspection by any person at reasonable times” and “the custodian of any public records shall allow any person the right of inspection of the records or any portion thereof.”
And the law takes precedence over the policy, reminded Moats, a attorney for the Wyoming Coalition for Open Government, an affiliate member of the National Freedom of Information Coalition.
“The Open Records Act prevails … the policy cannot override (the law),” Moats said, remarking that the policy is “a very repressive policy all the way around.”
“Reasonable” costs as mentioned in the law has been upheld by the Wyoming Supreme Court, Moats said.
There’s also the Supremacy Clause of the United States Constitution, which says that statutes of higher governments pre-empt lower governments’.
“There’s a lot out there to be decided what is a reasonable cost,” Moats said.
Superintendent Donna Little-Kaumo nor any members of the district Board of Trustees made any remark on the policy nor were any discussion held on it, in at least the second and third monthly board meetings where that was possible.
The first of three steps, or “readings,” of the policy was in the Oct. 10 board meeting. The prior month, I started covering the district. The district’s government is the board.
What of the board and transparency with documentation?
“They have to follow the Open Records Act regardless of what their policy is,” Moats said of the Public Records Act, later saying: “if you look at the Public Records Act, there’s a section in there that talks about obtaining a copy and says nothing in this section shall be construed as requiring a fee for the construction of records.”
Moats added that the district could take actions “if it was interested in keeping constituents informed and not hiding things from the very taxpayers” who make the public records possible.
One of the provisions of the policy says that “the time of managerial personnel,” if necessary, would cost $40 per hour.
“So they can determine to give them up or not?” Moats asked. “Is that a retrieval or search fee in the statute? … One of these days, we’re going to litigate that, I think, especially whether they charge for attorney fees.”
A $40 managerial fee passed even though that’s 50.3 percent higher than what a general/operations manager in Sweetwater County, the district’s county, makes per hour, according to PayScale, if (s)he worked an average of 40 hours per week throughout the year. Other rates are $20 per hour for “clerical personnel” and $30 for “professional personnel.”
If the professional personnel was not even a department administrator but an executive assistant, the $30 rate would be 10.3 percent higher than his/her hourly pay, according to PayScale, if (s)he worked an average of 40 hours per week throughout the year.
Moats chuckled at the $30 and $40 rates.
I made a request for board correspondence between Oct. 12 and Nov. 1 and Little-Kaumo responded with an estimated cost of $207.
Moats called that “highly questionable.”
“Because, again, you don’t even know what you are going to get,” he said.
He also called it “important” for people “who get a charge” in a public-records request to the district, “to “question it and ask for the basis.”
Moats also wondered if the policy means that a requester of records could pay a fee and then Little-Kaumo could say “according to the law your request is denied.”
“After this search and review, you have to turn around and (determine) whether they properly withheld (the documents),” Moats said.
“I can’t see a policy that allows charging such as this policy does, how that is not contrary to a public entity wanting to be transparent to individual constituents,” Moats added. “Such a policy is just contrary to public transparency.”
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An attorney from the Wyoming Coalition for Open Government has raised concern about a new public-records policy passed by the Sweetwater County School District №2 Board of Trustees. Questions about how it can pass muster with the overriding Wyoming Public Records Act are at hand.
Some of the language of the policy:
“Nothing in this Administrative Regulation prohibits the Superintendent or Designee from denying access to public records as provided by law.”
“The District may collect all applicable fees before providing or sending copies of requested records to a requester. Requesters must pay fees by cash, check or money order made payable to Sweetwater School District #2.”
“The District may provide the requester with an estimated date that the electronic records will be made available, but is not required to provide such estimate.”
“Where the District notifies a requester that the actual or estimated fees will exceed $25.00, the District will not expend additional agency resources on the request until the requester agrees in writing to pay the anticipated total fee.”
“The reasonable costs of producing a copy of the public record shall be borne by the party making the request, of $0.10/page and $0.20/CD. The cost of constructing the record, including the cost of programming and computer services shall be borne by the party making the request, of $20.00/hour for clerical time. Where clerical personnel cannot entirely perform a search and retrieval (for example, where the identification of records within the scope of a request requires the assistance of professional personnel), the applicable fee will instead be $30.00/ hour of search time spent by professional personnel. Where a request requires the time of managerial personnel, the fee will be $40.00/ hour of time spent by these personnel.”
Read the rest of the policy here.