Public records to be revenue?

OLYMPIA—State and local agencies may charge a processing fee for public records sought for commercial purposes, under terms of a proposal considered by the 2015 Legislature.

Critics, however, say the change would adversely affect records requests made by citizens for non–commercial use.

The issue is likely dead for this session as it failed to gain House Appropriations Committee approval by the Feb. 28 cut-off date for bill advancement. It may resurface later when the Legislature begins dealing with budget details.

Under the state’s Public Records Act, agencies must make their records available to the public for inspection and copying upon request. The agency cannot ask for the purpose of the request, except to determine whether the information requested is exempted from public disclosure. The act further defines the costs to provide copies of records to requesters.

House Bill 1086, sponsored by Rep. Jim Moeller, D-Vancouver, would authorize state and local agencies to ask requestors to provide information to establish whether the primary purpose of the request is for a commercial purpose. Rep. Mia Gregerson (D- SeaTac), Rep. Larry Springer (D-Kirkland), Rep. Sam Hunt (D-Olympia) and Rep. Jake Fey (D-Tacoma), co-sponsored the bill.

A commercial purpose request is defined in the bill as any record requested for data-mining purposes, where data are analyzed and summarized to create information that can be sold. Any information or data derived from the records that is sold, exchanged or transferred within six month of obtaining the record, is also considered a commercial-purpose request.

Most state and local agencies currently cannot charge a fee for locating and making records available for inspection, but they may charge requestors up to 15 cents per page for copies of records. This charge however, does not apply to electronically transmitted records.

Under the bill, agencies would be allowed to add a fee to cover the cost of locating, assembling, reviewing and redacting the records, if the purpose of the request is for a commercial purpose.

“This bill does nothing to limit or interrupt the flow of public records,” Moeller said. “It simply says if you are going to seek out records for resale or sale purposes, you need to first offset the government’s actual cost to locate, retrieve and assemble the records.”

Moeller said data-mining businesses, some of which are out of state, increasingly are requesting large volumes of records and then making a profit by selling the information.

“It’s not about government agencies making a profit,” he said. “It’s about taxpayers not subsidizing somebody else’s profit.”

Rowland Thompson, lobbyist for Allied Daily Newspapers and the Washington Newspaper Publishers Association, said the bill is problematic, especially for reporters and whistleblowers.

“Most of the records held by the government are business records, and often we ask for them anonymously,” he said. “We do not have to justify our asking for them.”

Thompson warned that many requestors, such as whistleblowers and reporters, would be adversely affected by the bill if they had to disclose the nature of their public record request.

Arthur West, a well-known public-records activist in Olympia, said citizens in smaller communities often do not want to be identified when they ask for records from a small county or a small city.

West said combining commercial requests with public-records requests is not in accord with the intent of the state’s public-records law.

“If we pass this bill, commercial requestors would have problems because they have to go through the Public Records Act, and public-records requestors would have problems because they’d have to be grilled to make sure they weren’t commercial requestors,” West said.

Diana Carlen, lobbyist for of Reed Elsevier and LexisNexis , a provider of legal public records and business information for local and state governments, law enforcement agencies and insurance companies, said the bill is a harmful precedent because it differentiates between who is making the records request and does not charge all commercial requestors uniformly.

“The fees that would be imposed on us would result in an increased cost for our services and many of our clients are local governments,” Carlen said.

Carlen noted that the bill doesn’t address concerns over the cost of complying with public-records requests, which stems from the large size of some requests.

“We gather most of our data through batches that provide automated processes that take little time for local governments to process,” she said.