Web portal bill stands to restrict public records

Ray Sullivan

Freedom to read public records is a wonderful choice in New Mexico. But those rights are in jeopardy if a loosely worded, illogical bill becomes law.
The measure is House Bill 291. The language in Senate Bill 314 is the same. The bills would allow state information technology (IT) people to develop and control a one-stop Web page, known as a portal, for New Mexico. It would give people one place to go to for information about the state, including finding and copying public records.
The idea sounds good, and could help make information more accessible to the public than it is today.
However, our IT public employees must find a way to cover the portal development and maintenance costs, estimated to be at least $10 million or more. By comparison, Georgia has spent $23 million and its portal is not done.
This is where jeopardy enters the picture. To pay for it, the IT gurus intend to make public records into a profit center. “Actual costs” would apply to the general public and the media. A “reasonable cost” of copies would apply to resellers of public records.
This means school districts wanting school bus driver records, which are now provided electronically, would pay more because the resellers would have to pay more. So would anyone whose insurance companies would pull their driving records.
This bill may contain fee caps, but don’t be fooled; cost overruns could easily drive prices into the stratosphere.
One portal state, Rhode Island, charges $18 for a driver’s record. Go to your New Mexico county courthouse or state agency today and you’ll find it costs up to $2 a record.
These bills are not the first attempt at a portal, by the way. Portal backers failed in a similar attempt late in the 2003 legislative session because of problems compounded by not listening to concerns of those likely to be affected the most: resellers of public records.
The portal proponents refused multiple offers to work with interested parties in the interim. Instead, in late November the tech experts deigned to notify interested parties — including the New Mexico Press Association and the state’s Foundation for Open Government, other lobbying groups and legislators — that they would introduce another “electronic government” bill during this 30-day session.
Why so late? An innocent mistake? The proponents pulled the same last-minute stunt last year. It sure becomes tougher to ferret out and change language that concentrates power if you can’t read and react until the final hours.
Since November, despite many requests and hundreds of hours spent by NMPA, FOG and others to amend bad language, several state public servants in technology have rejected good-faith offers on grounds of philosophical difference. What bunk.
The suggested changes would eliminate confusion and protect existing public rights to public information. Poorly written laws mean lawsuits will follow, especially when freedom to public information is jeopardized or eliminated.
As well, HB 291 and its Senate companion cede too much power to govern New Mexico’s electronic records to its IT people. While we respect their skills to help develop a Web portal — an idea that we’ve told them is good — these public servants aren’t versed in the state’s Public Records Act or the Inspections of Public Records Act, much less the First Amendment. Each draft of this bill has shown their lack of knowledge or concern about free speech protections.
Stephen Easley, chief author of the bill’s many drafts, is a stubborn fellow with a propensity to waltz around direct questions of those doubting his words. He has even dared tell legislators that naysayers should be ignored and to quibble over the details later.
Easley’s imprecise prose and his stubbornness show how dangerous it would be to give authority to someone whose focus is portal building. One change he made last week could outlaw the right of public information providers, including newspapers, from selling or reselling public records it obtains legally. That means you might not be reading police reports obtained electronically, because selling newspapers with such information would violate HB 291 if it became law with these words that it contained in a late Friday version:
“Any person or entity that obtains state electronic data records, information or services provided through the state’s portal is permitted to sell or resell the electronic data records, information or services only under the terms of a legal and valid contract between the state and the purchasing entity; media entities and non-profit entities that obtain data records for the actual cost of reproduction and delivery pursuant to paragraphs … above shall not sell or resell the data records, or deliver the data records to any other person or entity for sale or resale.”
Unless language can be worked out to satisfy concerns about public access, this e-governance bill should be killed a second time.