James Madison, considered the “Father of the Constitution,” is quoted saying, “A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps, both.”
And he was right.
In today’s world, access to public records is our tool for acquiring the information the government does not want us to see.
Sadly, as more of people have learned to use public records laws to obtain information to which they are entitled, many government agencies have learned to manipulate these laws to deny us this information, turning our right to access public records into a tragic farce.
PINAC correspondent Joshua Brown recently learned one of the most common methods used by public entities to deny access to public records. A demand for a large payment in exchange for documents requested.
Brown is investigating the McKinney pool melee, which left many people across the country interested in hearing the rest of the story. Brown made a request for several records related to the event and waited for a reply.
Here is the request for records made by Brown,
Dear Custodian of Records for The McKinney Police Department,
Under the Freedom of Information Act, I am requesting an opportunity to obtain copies of public records. The Freedom of Information Act requires a timely response time. If access to the records I am requesting will take longer than three business days, please contact me with information about when I might expect copies or the ability to inspect the requested records. I am requesting an opportunity to obtain copies of public records. I request that all fees for locating and copying the records be waived.
1. I would like to request any and all details of all electronic communications regarding the June 5, 2015 POOL INCIDENT (email, telephone logs, MDT Chat, inter/intra office memos).
2. I would like to request any and all details of all electronic communications between The McKinney Police Department and the District Attorney regarding the June 5, 2015 POOL INCIDENT (email, telephone logs, MDT Chat, inter/intra office memos).
3. I would like to request any and all details of all arrests resulting from the June 5, 2015 POOL INCIDENT.
4. I would like to request the names of the responding officers that have been placed on administrative leave resulting from the June 5, 2015 POOL INCIDENT.
Brown was shocked when he received a response from the city asking for more than $1,800 to fill the request.
The total charge for the documents requested is $1,843.64, including a $1,300 charge for compiling, redacting, and manipulating the records. There is also a charge for overhead, is calculated at 20% of the charge for labor.
This amount would be cost prohibitive for average Americans to participate in their government. In many states, this response leaves requestors with little recourse for challenging this tactic, driving a larger wedge between the people and public servants who seem to have no concept for the transparency of government.
You can read The City of McKinney’s response to Brown here.
Brown is not alone in facing this tactic. In March, during National Sunshine Week, USA Today published an article covering the very subject of the high cost of public records and the limiting of access to documents that belong to the people.
The public’s right to see government records is coming at an ever-increasing price as authorities set fees and hourly charges that often prevent information from flowing.
Though some states have taken steps to limit the fees, many have not:
• In Kansas, Gov. Sam Brownback’s office told The Wichita Eagle that it would have to pay $1,235 to obtain records of e-mail and phone conversations between his office and a former chief of staff who is now a prominent statehouse lobbyist. Mississippi law allows the state to charge hourly for research, redaction and labor, including $15 an hour simply to have a state employee watch a reporter or private citizen review documents.
• The Associated Press dropped a records request after Oregon State Police demanded $4,000 for 25 hours of staff time to prepare, review and redact materials related to the investigation of the director of a boxing and martial arts regulatory commission.
Brown is also not the only one who received a demand for a large payment for public records from McKinney, Texas. Gawker.com received an estimate from McKinney for more than $79,000 for emails relating to officer Casebolt. Gawker, in an article posted earlier this week had the following to say about the estimate:
The city arrived at that extraordinary figure after estimating that hiring a programmer to execute the grueling and complex task of searching through old emails would cost $28.50 per hour, and that the search for emails about Casebolt would take 2,231 hours of said programmer’s time. That only comes to about $63,000; the bill also includes $14,726 “to cover the actual time a computer resource takes to execute a particular program.” In other words, the operating cost of the computer used to search the emails is nearly 15 grand on its own. Another portion of Gawker’s request, for copies of Casebolt’s personnel file and any internal investigations into his conduct, costs $255.04.
How could finding a few emails possibly be so expensive? Casebolt, who has since resigned from McKinney PD, joined the department in 2005, and Gawker requested copies of all correspondence regarding his conduct dating back to that year. According to the letter, emails maintained by the city before March 1, 2014, “are not in a format that is searchable by City personnel,” and making the emails searchable would require “Programming Personnel to execute an existing program or to create a new program so that requested information may be accessed and copied,” to the tune of the aforementioned $63k. But since when are year-old emails not searchable? Is the city of McKinney still corresponding via telegram?
While Brown can appeal the decision to the Texas Attorney General’s Office, this causes an even further delay in receiving the information. This is where the exorbitant price tag works for the City of McKinney and against the people these public officials serve.
This governmental entity knows that most citizens will give up the fight for the records and most reporters will have moved on to the next story by the time the Attorney General makes his decision.
In the end, the public is left with only the information the government wants them to have, but if the government has nothing to hide, it should hide nothing.
You can reach the City of McKinney by calling 972-547-7500. To make a public record request for the same information or even information in its latest embarrassing video, which would help us establish that the requested material is of a public interest, you can fill out the online forms here.