The relatively new and expanding capability for state and local governments to provide online access to public information is putting some jurisdictions in a bind. As the public continues to press for remote access to records, cash-strapped governments are finding it hard to create these new services without additional revenue.
It costs money to create online access. Some jurisdictions are attempting to solve this by providing public records online for a fee.
Many governments put high-demand public records, such as city council agendas and legislative bills, on the Internet without much fuss. But other public records, such as court or tax files, are generally not being provided freely on the Internet or bulletin boards, in large part because of the cost.
Online access often requires that data be mirrored or duplicated for electronic perusal by the public. Separate databases and firewalls must be created for security and privacy protection. The public does not gain access to the same system government employees use in their daily work.
Private information also must be redacted -- edited or deleted -- to make government-collected information a public record. On older database systems, redaction often must be done by hand.
Setting this up costs money that many jurisdictions don't have. This has led some to arrange partnerships with private firms, such as telecommunications providers, to provide gateways and handle billing.
Another route taken by some jurisdictions is to invest in providing online access, then charge subscriptions to recoup the cost. These two solutions may make sense to governments and some businesses, but not everyone is pleased with these arrangements. And some of the unhappy are taking legal action.
The Los Angeles County Municipal and Superior Courts have begun to provide bulk data transfers to title companies and attorneys for a subscription fee. The county estimates that the service, called Information Access Provider, could earn over $1 million in the first full year of operation.
The program is being challenged in federal court by the Los Angeles Times and the California Newspaper Publishers Association. The plaintiffs argue that charging for access creates a tiered system of access to the records, with paper records available for cost of duplication, and modern electronic access available only to those who can pay market prices.
This is especially critical because access to government through public records is a basic pillar of an informed electorate, said Tom Newton, California Newspaper Publishers Association general counsel. Charging fees to gain access to public records "appears to put a financial barrier between people and records," he said.
But Information Access Provider advocates assert that the system
is optional and public access at the courthouses will be better off because online program revenues can be used to purchase additional equipment and free counter personnel to help more customers.
And if the county did not charge a subscription for this service, it wouldn't exist, said John Doktor of Public Sector Marketing Group, which is consulting for the county on the project. "It's not about charging for public access to public records. It is about new services," Doktor said.
Newton said that if the program will only exist with subscriptions, it may not be justified to build it in the first place. A system shouldn't be built unless there is a clear public benefit, such as improved agency efficiency or better public access, he said.
Indianapolis and Marion County are being sued over their subscription-based remote access system by some small businesses which claim that they are priced out of the consolidated local government's online CivicLink system.
Indiana law allows government agencies to charge a "reasonable fee" for enhanced access. Paper copies and computer downloads at government service counters are still made for the cost of duplication, but online access to some information requires a subscription.
Local officials contend that while cost-of-duplication access to public records is a core function, online access is an enhanced service. "High-volume users want a more convenient way for access," and taxpayers should not have to support this, said Mary "Dubbie" Buckler, Marion County treasurer.
Counter service is still available, and public terminals have been added to offices to augment traditional public access at cost of duplication. The general public normally requests access to small amounts of information, such as tax records on property about to be purchased. But some businesses, such as title companies, want large numbers of records as part of their products. "The bulk demand is from businesses dealing with government data, and they would pay for the convenience," she said, rather than sending an employee to government offices to gather it. While individuals and businesses pay tax for the collection of public information, and often argue they have already paid once for public records, Buckler said, they don't pay tax "for the additional management needed for convenient access.
"It requires a whole new level of government management that we do not have the money for," she said. "Convenience has a cost."
CivicLink, which is being implemented gradually and has several types of records from various local agencies, can cost less for a subscriber than using the public counter. Getting criminal history data from the Police Department costs $7 per query. If a record is attached, it costs $9. Using the public counter, meanwhile, costs $9 for a query, whether or not a record is attached to the name.
Charges differ depending on the type of information being queried. There are about 2,000 subscribers now, including law firms, title companies and other commercial enterprises.
But CivicLink creates a tiered public access system, with more monied individuals or companies gaining better access to public records than others, said W. Russell Sipes, an attorney representing the plaintiffs suing Indianapolis. "There is no reasonable basis to divide people like that," Sipes said.
Individuals and companies can still access public records for the cost of duplication at public counters and access terminals in some local government offices, which Sipes argued is acceptable if the government "required all to do that."
He also argued that governments should not rush into arrangements at this stage of online use by the public. "Five years from now, when society changes even more, we'll be locked into a system," he said.
RELATIVE PEACE IN FLORIDA
Florida, meanwhile, changed its public records laws last year to allow rather than require state agencies to charge for remote access. "We found that it sometimes costs more to bill them," said Bill Wyrough, staff attorney for the Florida Legislature's Joint Committee on Information Technology Resources.
The state has reached a compromise that is eluding some other parts of the country in this nationwide debate. There doesn't seem to be a magic formula that enabled Florida to reach a balance between governments and public records advocates. But it is still instructive to see how it works there.
As in other places, Florida policy makers at the state and local level grapple with providing access to public records, including online, without breaking the jurisdiction's bank account. "They want to provide a diversity of access without spending too many resources on it," Wyrough said.
Dade County, for example, provides remote access for a fee to 11 databases, including court, property and other public records. "If Florida said we couldn't charge anymore, we would have to close it down," said Jerry Kiernan, a public access supervisor for Dade County.
Individuals can use public access terminals in government offices to tap into databases at the cost of duplication, with remote access requiring fees depending on the records sought. Revenue from public record access in Florida can only be used for maintaining the system, and any funds left over at the end of the year must be reinvested into that system for improvements and upgrades. State law allows government agencies to charge enough to pay indirect and direct costs of the system.
And that is as far as some affected groups are willing to compromise on charging for access to public records. "We want to keep the door shut so that public information is not a revenue source," said Dick Shelton, executive director of the Florida Press Association. "We think that would be poor public policy," he said, adding that he acknowledges that local governments are strapped for money. "So we agree that they can recoup the cost."
While Florida seems to have reached a solution for now, much of the rest of the country is locked in frequent legislative and court battles over charging for remote access to records. The issues are pretty new, however, and there is hope as technology develops. Automatic redaction and other features in the coming years could make it cheaper than it is today for a jurisdiction to provide remote access. It could be just another issue, pushed to the forefront by our society's increased use of information technology, that needs to be worked through. As Public Strategies' Grant put it: "We haven't learned how to live in this [Information] Age yet."