Jim Warren, my predecessor, recently warned that language approved in a proposal for final adoption by the California Senate Task Force on Electronic Access to Public Records would allow state and local agencies to recoup "all" costs related to providing access to electronic information. The proposed language will allow agencies to charge the "actual cost of providing the record, which may include the costs of search, retrieval, review, segregation, and duplication." While drafting legislation frequently involves matters of semantics, "actual costs" does not have the same meaning as "marginal costs," the phrase that has been commonly used in access policy. While "marginal costs" means charging only for duplication and search, and perhaps review time and mailing costs, "actual costs" can factor in all costs associated with furnishing the information. Besides those already mentioned, this includes overhead costs such as utilities and salary benefits. Potentially, the gap between "marginal" and "actual" could be tremendous.
Whose Wallet Will Open?
Fights about access costs have always centered on the issue of who should pay. The federal Freedom of Information Act (FOIA), and most other access statutes, already answered that question when the statutes were originally drafted and passed -- it is the government that pays in the form of subsidizing the actual costs, not the requester. The philosophical basis for placing the cost burden on government is that government information belongs to the people, who have a right of access restricted only by the various statutes' exemptions. Although Congress vastly underestimated the cost of implementing FOIA, it clearly understood that cost was not to be an obstacle to access. Even the agencies understood this, and in the early years of implementation, the inability to pay was a perfectly acceptable basis for waiving fees. Congress has backed away from this principle only once -- in 1986 -- when it allowed extra charges, particularly review time, to be levied against "commercial" users.
What Will the Market Bear?
But the debate on information policy has moved from being seen as a government obligation to citizens -- allowing them to make use of government information -- to one of viewing government information as a commodity with varying degrees of market value. With the new viewpoint, government information is a precious resource to be safeguarded and parceled out only at prices that bear some realistic resemblance to the costs associated with the information -- including such items as collection and maintenance of the information. Under this approach to information policy, government information is a revenue source to be sold based on its market value.
Most government information isn't worth much in terms of dollars because there is no particular demand for it. But one of the conundrums of the electronic age may be that, while bits and pieces of information by themselves are virtually worthless in a market sense, that same information aggregated in databases may be worth considerably more. A small list of names and office addresses may be worth very little, but a database filled with the same type of information may have far greater potential value to marketers or list brokers. A reasonably detailed city map might be worth a few dollars, but the same map in database form, with all the added layers of information possible in a GIS system, may be worth thousands or tens of thousands.
A Precarious Balancing Act
While pure cost has been the battleground so far, Warren's warning elicited a response that should give a dedicated access advocate the chills. One of the members of the Senate Task Force, Palo Alto City Attorney Ariel Pierre Calonne, replied that the reason electronic access would cost so much in California was the constitutional obligation to protect privacy. To many access advocates, lumping cost and privacy together is like fighting your two worst enemies simultaneously.