Pay for public records?
The school district is requesting Cacioppo pay the costs – $1,692 – of retrieving documents from its computer system that he requested on Sept. 5.
After being offered a look at the records on Sept. 16, Cacioppo, who publishes Speakout!, declined to pay what the school district spent in the search, saying the documents are public and should be available at no cost.
“We will require a show-cause hearing asking the school district to explain why they haven’t presented the records,” says Carol Curtis, Cacioppo’s attorney. “This is an important case regarding the public’s right of access to public records.”
The reason for the charge, says Rick Spitzer, director of technology for the school district, is that Cacioppo requested the district use procedures not normally applied for public records requests.
“I wouldn’t consider undeleting files from the hard drive a common public record request,” Spitzer says.
Colorado’s public records law says copies may be made of any public record at a cost of not more than $1.25 per page. An additional, “reasonable fee,” may be charged for special requests.
Tom Kelly, general council to the Colorado Press Association, says the questions remain:
– What is “reasonable”?
– Should there be a fee at all.
“I have a problem with the idea that someone requesting a public document has to pay to retrieve the records,” Kelly says.
Although Adele Reester, attorney for the school district, says Cacioppo should be responsible for the cost of the computer search, Curtis says there’s nothing in the open records statute that leads her to believe paying for the retrieval is a reasonable request.
“It appears that what we need to do is have a judge interpret the Colorado Open Records Statute. Presumably when they passed this law they knew the level of technology we’re dealing with now. They knew we’re in the technological era.”
Cacioppo says he never authorized an expenditure of any amount in order to get the documents. In fact, he says, he notified the school district in advance he we wouldn’t pay for the search.
“I think the law is pretty clear,” he says. “They’re out of line. This is a case of them blowing smoke. They (school district officials) have effectively denied us access to view the records by imposing an unlawful fee.”
On Sept. 13, as a result of a restraining order from Cacioppo, the school district shut down its e-mail system to retrieve the documents requested.
“Cacioppo’s request was for e-mails that were deleted and that may still be on the hard drive of the e-mail server,” Spitzer says.
The process required that the server be shut down for three hours. The files were searched using a software program that looks for key words or phrases, Spitzer says, and a representative from RTP Technical Services assisted the district with the search – at a cost of $938.
The rest of the charges are for Spitzer’s nine hours put into the retrieval and eight hours for David Cabin, network specialist for the school district, who also assisted. The total amount also includes $250 for the software to do the job.
Cacioppo’s request stemmed from the circulation of a flyer in April advocating a boycott of the advertisers in Speakout!
Following the flyer’s distribution by school district employees, Superintendent Mel Preusser allegedly wrote an e-mail to them saying the district didn’t condone the circulation of this information and does not support such a boycott.
“It has been the contention of the district that this is the only e-mail that has existed related to this issue,” Spitzer says. “But he (Cacioppo) insisted there were other files deleted in this case. Searching deleted files isn’t a standard request for open records. We provided him with what we think is the law.”
If the documents are still retrievable, Kelly says, they aren’t destroyed.
“Everything that’s retrievable is public record,” he says.
But e-mail, Spitzer says, isn’t considered public record unless it fits criteria.
“We archived the items that we feel are important to public records; we don’t archive every e-mail,” he adds. “Public organizations decide what is public information. If something has to do with district policy procedures, it has to be maintained.”
The task of sorting out which records should be make public, Curtis says, should be made by “an independent third party who doesn’t have a vested interest.”
“No public official can decide what is a public record,” Kelly agrees. “If a document is available, a person should be able to have access. Under public law these are public records and a public entity has to comply. Given the potential for massive amounts of records to be in the category of retrievable, the law is very impractical. It gives members of the public access to that data as much as in written format.”
Under Colorado’s public records law:
Copies may be made of any public record at a cost of not more than $1.25 per page. An additional, “reasonable fee” may be charged, however, for:
– Special requests for data in a form not required as a record. Requester may have to pay costs to manipulate the data. Subsequent requesters to pay same as first.
– Use of a computer program other than word processing, if necessary, to provide a record. Fees for a copy can recover costs of the system. However, this may be waived for public purposes, including journalists, nonprofits and academic research.
– Records “not readily available” must be provided within three working days, unless custodian in writing declares there are “extenuating circumstances,” such as the number of documents required. This extends access time to seven days.
Veronica Whitney can be reached at 949-0555, ext. 454, or at firstname.lastname@example.org.