SENATE BILL 353

51st legislature - STATE OF NEW MEXICO - first session, 2013

INTRODUCED BY

Howie C. Morales

AN ACT

RELATING TO PUBLIC RECORDS; UPDATING CERTAIN PROVISIONS CONCERNING INDEXING OF COUNTY RECORDS; PROVIDING FOR PROTECTION OF STATE, COUNTY AND MUNICIPAL DATABASES; RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTION OF LAW IN LAWS 2011; DECLARING AN EMERGENCY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 14-2-6 NMSA 1978 (being Laws 1993, Chapter 258, Section 3, as amended by Laws 2011, Chapter 134, Section 3 and by Laws 2011, Chapter 181, Section 1 and also by Laws 2011, Chapter 182, Section 1) is amended to read:

     "14-2-6. DEFINITIONS.--As used in the Inspection of Public Records Act:

          A. "custodian" means any person responsible for the maintenance, care or keeping of a public body's public records, regardless of whether the records are in that person's actual physical custody and control;

          B. "file format" means the internal structure of an electronic file that defines the way it is stored and used;

          C. "inspect" means to review all public records that are not excluded in Section 14-2-1 NMSA 1978;

          D. "person" means any individual, corporation, partnership, firm, association or entity;

          [D.] E. "protected personal identifier information" means:

                (1) all but the last four digits of a:

                     (a) taxpayer identification number;

                     (b) financial account number; or

                     (c) driver's license number;

                (2) all but the year of a person's date of birth; and

                (3) a social security number;

          [E.] F. "public body" means the executive, legislative and judicial branches of state and local governments and all advisory boards, commissions, committees, agencies or entities created by the constitution or any branch of government that receives any public funding, including political subdivisions, special taxing districts, school districts and institutions of higher education; and

          [F.] G. "public records" means all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained."

     SECTION 2. Section 14-2-9 NMSA 1978 (being Laws 1993, Chapter 258, Section 6, as amended by Laws 2011, Chapter 181, Section 2 and by Laws 2011, Chapter 182, Section 3) is amended to read:

     "14-2-9. PROCEDURE FOR INSPECTION.--

          A. Requested public records containing information that is exempt and nonexempt from disclosure shall be separated by the custodian prior to inspection, and the nonexempt information shall be made available for inspection. If necessary to preserve the integrity of computer data or the confidentiality of exempt information contained in a database, a partial printout of data containing public records or information may be furnished in lieu of an entire database. Exempt information in an electronic document shall be removed along with the corresponding metadata prior to disclosure by utilizing methods or redaction tools that prevent the recovery of exempt information from a redacted electronic document.

          B. A custodian shall provide a copy of a public record in electronic format if the public record is available in electronic format and an electronic copy is specifically requested. However, a custodian is only required to provide the electronic record in the file format in which it exists at the time of the request.

          C. A custodian:

                (1) may charge reasonable fees for copying the public records, unless a different fee is otherwise prescribed by law;

                (2) shall not charge fees in excess of one dollar ($1.00) per printed page for documents eleven inches by seventeen inches in size or smaller;

                (3) may charge the actual costs associated with downloading copies of public records to a computer disk or storage device, including the actual cost of the computer disk or storage device;

                (4) may charge the actual costs associated with transmitting copies of public records by mail, electronic mail or facsimile;

                (5) may require advance payment of the fees before making copies of public records;

                (6) shall not charge a fee for the cost of determining whether any public record is subject to disclosure; and 

                (7) shall provide a receipt, upon request.

          D. Nothing in this section regarding the provision of public data in electronic format shall limit the ability of the custodian to engage in the sale of data as authorized by [Section] Sections 14-3-15.1 and 14-3-18 NMSA 1978, including imposing reasonable restrictions on the use of the database and the payment of a royalty or other consideration."

     SECTION 3. Section 14-3-15.1 NMSA 1978 (being Laws 1986, Chapter 81, Section 9, as amended) is amended to read:

     "14-3-15.1. RECORDS OF STATE AGENCIES--PUBLIC RECORDS--COPY FEES--COMPUTER DATABASES--CRIMINAL PENALTY.--

          A. Except as otherwise provided by federal or state law, information contained in information systems databases shall be a public record and shall be subject to disclosure in printed or typed format by the state agency that has inserted that information into the database, in accordance with the Public Records Act, upon the payment of a reasonable fee for the service.

          B. The administrator shall recommend to the commission the procedures, schedules and technical standards for the retention of computer databases.

          C. The state agency that has inserted data in a database may authorize a copy to be made of a computer tape or other medium containing a computerized database of a public record for any person if the person agrees:

                (1) not to make unauthorized copies of the database;

                [(2) not to use the database for any political or commercial purpose unless the purpose and use is approved in writing by the state agency that created the database;

                (3)] (2) not to use the database for solicitation or advertisement [when the database contains the name, address or telephone number of any person] unless such use is otherwise specifically authorized by law;

                [(4)] (3) not to allow access to the database by any other person [unless the use is approved in writing by the state agency that created the database]; and

                [(5)] (4) to pay a royalty or other consideration to the state as may be agreed upon by the state agency that created the database.

          D. If more than one state agency is responsible for the information inserted in the database, the agencies shall enter into an agreement designating a lead agency. If the agencies cannot agree as to the designation of a lead state agency, the commission shall designate one of the state agencies as the lead agency to carry out the responsibilities set forth in this section.

          E. Subject to any confidentiality provisions of law, any state agency may permit another state agency, county or municipality access to all or any portion of a computerized database created by a state agency.

          F. If information contained in a database is searched, manipulated or retrieved or a copy of the database is made for any private or nonpublic use, a fee shall be charged by the state agency permitting access or use of the database.

          G. Except as authorized by law or rule of the commission, any person who reveals to any unauthorized person information contained in a computer database or who uses or permits the unauthorized use or access of any computer database is guilty of a misdemeanor, and upon conviction the court shall sentence that person to jail for a definite term not to exceed one year or to payment of a fine not to exceed five thousand dollars ($5,000) or both. That person shall not be employed by the state for a period of five years after the date of conviction."

     SECTION 4. Section 14-3-18 NMSA 1978 (being Laws 1963, Chapter 186, Section 2, as amended) is amended to read:

     "14-3-18. COUNTY AND MUNICIPAL RECORDS--GEOGRAPHIC INFORMATION SYSTEM--COMPUTER DATABASES--COPY FEES.--

          A. The administrator may advise and assist county and municipal officials in the formulation of programs for the disposition of public records maintained in county and municipal offices.

          B. Notwithstanding the provisions of Subsection E of this section, a county or municipality may charge a reasonable fee, as adopted by ordinance of the respective board of county commissioners or governing body of a municipality, for a document or product generated by a geographic information system.

          C. Except as otherwise provided by federal or state law, information contained in a computer database shall be a public record and shall be subject to disclosure in printed or typed format by a county or municipality that has inserted that information into the database, in accordance with the Public Records Act.

          D. The administrator may advise and assist county and municipal officials with the procedures, schedules and technical standards for the retention of computer databases.

          E. A county or municipality that has inserted data in a computer database shall authorize an electronic copy to be made of the computer database of a public record on a currently available electronic medium for a person if the person agrees to pay a reasonable fee based upon the cost of:

                (1) materials;

                (2) making an electronic copy of the computer database; and

                (3) personnel time to research and retrieve the electronic record.

          F. A county or municipality that has inserted data in a computer database created to record property rights or taxation records may authorize an electronic copy to be made of the computer database of a public record on a currently available electronic medium for a person if the person agrees:

                (1) not to make unauthorized copies of the database;

                (2) not to use the database for solicitation or advertisement unless such use is otherwise specifically authorized by law;

                (3) not to allow access to the database by any other person; and

                (4) to pay a royalty or other consideration to the county or municipality as may be agreed upon by the county or municipality that created the database.

          [F.] G. Subject to any confidentiality provisions of law, a county or municipality may permit another federal, state or local government entity access to all or any portion of a computer database created by the county or municipality.

          [G.] H. A county or municipality may at its option, and if it has the capability, permit access or use of its computer and network system to search, manipulate or retrieve information from a computer database and charge [reasonable fees based on the cost of materials, personnel time, access time and the use of the county or municipality's computer network] a royalty or other consideration to be paid to the county or municipality as may be agreed upon by the county or municipality that created the database."

     SECTION 5. Section 14-10-1 NMSA 1978 (being Laws 1903, Chapter 87, Section 1, as amended) is amended to read:

     "14-10-1. INDEX.--[SEC. 20. That whenever in the opinion of the board of county commissioners of any county in the state it is necessary] For the convenience of the public and the better preservation of titles to real property, [to have] there shall be a complete and accurate county recording index made of all instruments of record affecting real property [they are hereby authorized to have such index] made by the county clerk of [said] each county."

     SECTION 6. Section 14-10-2 NMSA 1978 (being Laws 1903, Chapter 87, Section 2, as amended) is amended to read:

     "14-10-2. INDEX--SEARCHABLE DATABASE--REQUIREMENTS.--[SEC. 21.] For the purpose of the county recording index [mentioned in the preceding] created pursuant to Section [there shall be provided index books] 14-10-1 NMSA 1978, each county clerk shall maintain a searchable database, which may include index books, and all instruments affecting title to real estate shall be indexed [in their regular order alphabetically arranged, as well as in their reverse order in the same manner]."

     SECTION 7. Section 14-10-3 NMSA 1978 (being Laws 1903, Chapter 87, Section 3, as amended) is amended to read:

     "14-10-3. COUNTY RECORDING INDEX--REQUIRED FIELDS.--[Sec. 22.] The [said] county recording index shall [be ruled and headed in the manner and form substantially as shown on the following form:

contain, at a minimum:

          A. the following administrative fields:

                (1) the book and page or instrument number; and

                (2) the date and time of recordation; and

          B. the following descriptive fields:

                (1) the name of the grantor or grantors;

                (2) the name of the grantee or grantees; and

                (3) legal descriptions, references to recorded instruments in the county containing legal descriptions and miscellaneous information."

     SECTION 8. Section 14-10-4 NMSA 1978 (being Laws 1903, Chapter 87, Section 4, as amended) is amended to read:

     "14-10-4. ENTRIES TO THE INDEX--DESCRIPTION OF LANDS.--[SEC. 23.] Each name, descriptor or reference placed in a descriptive field constitutes a separate entry in the county recording index. All [town] real property or lands shall be entered and described in the [said] county recording index in the manner indicated, according to numbers, metes or bounds; [But] provided that where this is impossible from the nature of the description, [then] the tract or tracts may be described by some appropriate title [or the owner's name]."

     SECTION 9. Section 14-10-5 NMSA 1978 (being Laws 1903, Chapter 87, Section 5, as amended) is amended to read:

     "14-10-5. STANDARD FORM--USE REQUIRED.--[SEC. 24.] The form of index provided in [the two preceding sections] Chapter 14, Article 10 NMSA 1978 shall be the standard form of index and shall be used throughout the state."

     SECTION 10. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

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