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Editor's Note: Legal Line is a feature that will periodically appear in NACO E-Line. This edition has been prepared by Beth Ferrell of the NACO legal staff. Legal Line is not intended to serve as legal advice. Rather, it is published to alert readers to court decisions and legal or advisory matters important to county government. For a specific opinion on how the information contained in this article or that which will be discussed in future issues relates to your county, consult your county attorney or personal counsel.
Subscription Fees Fall Under the New Public Records Law (LB363)
Since LB363 took effect in September, counties and other public bodies have been revisiting historical methods of handling public records requests and the costs for providing records. According to its sponsor, the bill was introduced because some custodians of public records were charging fees for copies that were viewed as excessive. They were perceived to be bad actors who were overcharging for research to provide documents that had already been paid for by tax dollars. The bill revised statutory authority to include charges for staff time in the cost of copies.
LB363 limits the cost to the actual added cost of making the copies available and does not allow charges for staff time to be included until after the first four cumulative hours of "searching, identifying, physically redacting, or copying." Neb.Rev.Stat. §84-712(3)( c). Attorney fees to review the records to determine a legal basis for withholding the records cannot be passed on to the requester. In addition, if the information requested is available on the county's website, the custodian of the record can fulfill his or her responsibilities by referring the requester to the location on the website. Unless the requester does not have reasonable access to the Internet due to lack of a computer, lack of Internet availability, or inability to use a computer or the Internet, the referral meets the letter of the law.
Because county officials regularly receive requests for access to blocks of county records, many counties have developed services that allow a subscriber to search computer databases of public documents. In addition, counties that receive requests for "all of your records" and periodic updates sometime charge a flat rate for the services. Other counties have contracts with vendors who store public records electronically and sizeable records requests are fulfilled through direct interaction between the requester and the vendor.
While LB363 does not prohibit subscription services or other arrangements, it requires the ability to justify the cost of providing the records. If the information is not available on the county's website, or the requester wants a copy of the record, the custodian may charge for copies under one of three cost structures in 84-712(3)(b) - photocopies, computer printouts, or electronic data. Subscriptions generally fall within the category of electronic data.
Under 84-712(3)(b(iii),
". . . the actual added cost of making the copies [of electronic data] available shall include the reasonably calculated actual added cost of the computer run time, any necessary analysis and programming by the public body, public entity, public official, or third-party information technology services company contracted to provide computer services to the public body, public entity, or public official, and the production of the report in the form furnished to the requester."
As noted above, the cost cannot include charges for the time of a public official or employee until after four cumulative hours of work on the request or attorney fees for reviewing the records.
The amount charged for a subscription must be justified under these requirements and it is not likely that a flat fee per month will be in compliance with the new law.
If the records are requested in a new or different form or format modified from that of the original public record, the custodian is not required to produce or generate the new document. §84-712(3)(e). Although not stated directly in LB363, it can be assumed that the custodian of the record and the requester could enter into negotiations to determine the cost of providing such records in the requested format.
Some counties have chosen to use software that facilitates fulfilling subscription requests. In order to determine the actual added costs, it is appropriate to ask whether the software would be used if not for the subscription and if the software constitutes a new or different form or format. Generally, the entire cost of the software cannot be passed along to a single requester unless it is clear that the county would not otherwise use the software.
As with any new law that significantly alters business practices in counties, tweaks will need to be made as custodians of public records begin implementing the revised statutes and courts interpret the new provisions.
To view the entire text of LB363, including the transcript of floor debate on the bill, click here.
The Attorney General has prepared a summary of statutes, case law, and other resources related to public records here.
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