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Tue, Sept. 17

Legal wrangling over fair costs for public records

PHOENIX -- A fight playing out in Arizona courts could determine whether some people have to pay more -- a lot more -- for copies of public records.

On the surface, the dispute centers around a narrow provision of law which governs what agencies can charge for records that will wind up as evidence in legal cases. But the issue raises broader questions of when governments can consider the fact the records will be used by those requesting them to make money.

The private investigator who is fighting the Pima County Attorney's Office said if that's the test, then authors and reporters who use public records should also be paying higher fees to obtain them. And the attorney who represents him said he sees this fight as part of a long-term effort by public agencies to shift more of the costs of producing the records to those who want them.

Arizona laws allow anyone to obtain public records. And in most cases, the government agency can charge only the bare minimum for the cost of making copies.

But that doesn't apply if someone wants a record for a "commercial purpose' like a chiropractor who wants a list of automobile accident victims for marketing purposes.

In that case, agencies can charge for costs of producing the records, like staff time. Potentially more significant -- and more expensive -- it also permits a fee based on the value of the records on the commercial market.

This case stems from the fact that county attorneys must keep a register of every case their prosecute, including names of defendants, the charges, the attorneys and judges involved, the defendants' race, gender and age, and what ultimately happened.

Richard Robertson, who owns R3 Investigations, asked the Pima County Attorney's Office for selected portions of the register going back to 2002. Robertson works with defense attorneys who want the information when handling cases.

Pima County Attorney Barbara LaWall provided the information. But she argued that Robertson should pay commercial fees.

LaWall acknowledged the law does say a request is not for a commercial purpose when the information is used "as evidence or as research for evidence in any action in any judicial or quasi-judicial body.' But she said the request Robertson made was not for a specific case but instead so he could build his own database to sell to his clients at a profit.

Both a trial judge and the state Court of Appeals disagreed with her. But Deputy County Attorney Andrew Flagg said his boss believes they got it wrong and is preparing to seek Supreme Court review.

The issue, he said, comes down to exactly how Robertson is using the information.

"R3 is not using documents at all in any kind of (legal) proceeding,' he said.

"They really just sell a service or product,' Flagg said. It is the attorneys -- who paid Robertson for the report -- that are using the records in court.

"In our view, it's just effectively the resale of public records,' said Flagg. He said taxpayers should neither have to subsidize that by absorbing the costs of producing the records nor allow someone else to make a profit from the fact that his office has gathered the records in the first place.

Robertson, a former Arizona Republic and KPNX-TV reporter, said the fact he makes money is irrelevant.

"Why is that any different than a reporter gathering information, particularly somebody that owns their own news agency and makes a direct profit off of public records?' he asked. "What's the difference?'

The difference, Flagg said, is that reporters do more than simply obtain public records and then resell them. That's not just a difference in his mind.

In 1993 the Court of Appeals said the requirement to charge for commercial use is "aimed at the direct economic exploitation of public records, not at the use of information gathered from public records in one's trade or business.' The judges said charging reporters "is inconsistent with the whole tenor of the public records statutes to make access freely available so that public criticism of governmental activity may be fostered.'

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