By Jessica Dyer
Albuquerque Journal
RIO RANCHO, N.M. — The Attorney General’s Office recently told the city of Rio Rancho that charging citizens $30 for copies of 911 call recordings might violate the state’s sunshine law.
But the city disagrees – and could start charging more for more time-consuming requests.
In a case that highlights a key difference between New Mexico’s Public Records Act and the law governing public access to those documents – formally called the Inspection of Public Records Act – Rio Rancho’s city attorney argues that state statute allows municipalities to charge a “reasonable” fee to provide copies of records stored in database. That includes the time employees spend pulling the records.
While Assistant Attorney General Lori Chavez described Rio Rancho’s 911 call fee as “excessive,” Rio Rancho City Attorney Gregory Lauer signaled in a response letter that it might be insufficient in some cases.
Since some public records requests “may entail costs both slightly lower and significantly higher than the city’s standard $30 charge, the City will consider soon whether it needs to shift its records policies to charge for actual costs” to produce the recordings, Lauer wrote in the Nov. 15 letter.
In October, Chavez had issued an opinion letter in response to a citizen complaint that Rio Rancho was violating IPRA. The city earlier this year told Dianne Goodman she needed to pay $30 up front for each of four 911 recordings she had requested under IPRA. Chavez determined that the city violated IPRA by not allowing Goodman access prior to charging for downloading copies and might have violated IPRA with the $30 fee.
The city has since provided Goodman the four recordings and offered to refund her payment.
While IPRA allows public agencies to charge the “actual costs” for downloading copies of records, such as the storage device, “IPRA does not permit agencies to charge for identifying and isolating records responsive to the request,” Chavez wrote.
But Lauer’s letter cites a separate statute, the Public Records Act, which has special provisions for information stored in databases that enable municipalities to charge a requester based on costs that include staff time.
“The City can require payment of actual costs to produce 911 recordings pursuant to both IPRA and PRA, two statutes that must be interpreted together and harmoniously,” city spokeswoman Annemarie Garcia said in an emailed statement to the Journal. “Costs may be less than or greater than $30 because they would be actual costs.”
An administrative process “that would involve the City Council” would be required to change the current fee structure, she said.
But attorney Kip Purcell, a New Mexico Foundation for Open Government board member, said that, under the same law, citizens should still be able to get recorded information in a written format, such as a transcript, without paying any copy fees.
Added FOG Executive Director Peter St. Cyr: “They shouldn’t be shifting the burden of their ineffective management system to the public – we’re already paying them (through their salaries). Their approach should be, ‘What can we do to provide this information quickly?’ ”
Lauer estimated that producing one redacted copy of a 10-minute 911 call requires a dispatcher at least 55 minutes. Dispatchers with the authority to make them earn an average of $20.70 per hour, he wrote. Creating an inspectable version of the call involves searching the database, listening to the call, copying it, and making the necessary redactions.
The attorney argues that Rio Rancho cannot simply make its databases “wholly and publicly accessible,” since they are part of the Sandoval County Regional Communications Center, a partnership that also includes information from four other governmental and tribal entities.
At one point, Lauer also questions whether IPRA even accounts for auditory examination of records, writing “by plain meaning, and given the historical context of ‘public records’ in the form of print on paper, the more reasonable and likely interpretation of ‘inspect’ connotes a visual examination.”
But Purcell noted that IPRA defines public records to include all documents relating to public business “regardless of physical form or characteristics,” including recordings.
Garcia, the spokeswoman, said the city will not change any of its policies without further input on IPRA and PRA language “which we believe was not taken into consideration/addressed as part of the first AGO response.”
A spokesman for the attorney general said the office does not reconsider its determinations, but he also noted that the office does not have the authority to fine or reprimand agencies that violate IPRA.
“We intend to work with the City to revise their policies and hopefully resolve the pending issue,” spokesman James Hallinan said in an email.
Goodman said IPRA gives citizens the right to inspect records.
“This is necessary – and the only avenue citizens have other than filing a lawsuit – in order to ensure that our government is operating efficiently, respecting the law and their own policies and procedures,” she said in an email.
Copyright 2017 Albuquerque Journal