SENATE BILL 232
54th legislature - STATE OF NEW MEXICO - first session, 2019
INTRODUCED BY
Pat Woods
AN ACT
RELATING TO PUBLIC RECORDS; ALLOWING A PUBLIC BODY TO CHARGE ADDITIONAL COSTS AND FEES FOR PUBLIC RECORDS REQUESTS THAT REQUIRE EXCESSIVE USE OF TECHNOLOGY OR PERSONNEL; ALLOWING A PUBLIC BODY TO RECOVER COSTS AND ATTORNEY FEES IN A PUBLIC RECORDS ACT LAWSUIT; PROSCRIBING PROCEDURES AND FEES FOR REQUESTS FOR A COMMERCIAL PURPOSE; ALLOWING FOR INJUNCTIONS.
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) is amended to read:
"14-2-6. DEFINITIONS.--As used in the Inspection of Public Records Act:
A. "commercial purpose" means:
(1) the use of a public record for the purpose of:
(a) sale or resale;
(b) producing a document containing all or part of the public record for sale;
(c) obtaining names and addresses from public records for the purpose of solicitation or the sale of the names and addresses to another for the purpose of solicitation; or
(d) for any purpose for which the requester can reasonably anticipate the receipt of monetary gain from the direct or indirect use of the public record; and
(2) does not mean the use of a public record:
(a) as evidence or as research for evidence in an action in any judicial or quasi-judicial body; or
(b) for journalistic purposes;
[A.] B. "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.] C. "file format" means the internal structure of an electronic file that defines the way it is stored and used;
[C.] D. "inspect" means to review all public records that are not excluded in Section 14-2-1 NMSA 1978;
[D.] E. "person" means any individual, corporation, partnership, firm, association or entity;
[E.] F. "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;
[F.] G. "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;
[G.] H. "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; and
[H.] I. "trade secret" means trade secret as defined in Subsection D of Section 57-3A-2 NMSA 1978."
SECTION 2. Section 14-2-8 NMSA 1978 (being Laws 1993, Chapter 258, Section 5, as amended) is amended to read:
"14-2-8. PROCEDURE FOR REQUESTING RECORDS.--
A. Any person wishing to inspect public records may submit an oral or written request to the custodian. However, the procedures set forth in this section shall be in response to a written request. The failure to respond to an oral request shall not subject the custodian to any penalty.
B. Nothing in the Inspection of Public Records Act shall be construed to require a public body to create a public record.
C. A written request shall provide the name, address and telephone number of the person seeking access to the records, and shall identify the records sought with reasonable particularity. Except for a statement of commercial purpose as required by Section 5 of this 2019 act, no person requesting records shall be required to state the reason for inspecting the records.
D. A custodian receiving a written request shall permit the inspection immediately or as soon as is practicable under the circumstances, but not later than fifteen days after receiving a written request. If the inspection is not permitted within three business days, the custodian shall explain in writing when the records will be available for inspection or when the public body will respond to the request. The three-day period shall not begin until the written request is delivered to the office of the custodian.
E. In the event that a written request is not made to the custodian having possession of or responsibility for the public records requested, the person receiving the request shall promptly forward the request to the custodian of the requested public records, if known, and notify the requester. The notification to the requester shall state the reason for the absence of the records from that person's custody or control, the records' location and the name and address of the custodian.
F. For the purposes of this section, "written request" includes an electronic communication, including email or facsimile; provided that the request complies with the requirements of Subsection C of this section."
SECTION 3. Section 14-2-9 NMSA 1978 (being Laws 1993, Chapter 258, Section 6, as amended) 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 charge a service fee, in addition to the other costs or fees allowed by this subsection, if the request requires extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved; provided that the service fee shall not exceed the actual cost incurred by the agency for the extensive use of information technology resources or labor costs of the personnel providing the services;
[(5)] (6) may require advance payment of the fees before making copies of public records;
[(6)] (7) shall not charge a fee for the cost of determining whether any public record is subject to disclosure; and
[(7)] (8) shall provide a receipt, upon request.
D. In addition to the costs and fees provided in Subsection C of this section, a custodian may charge the following for the inspection of public records for a commercial purpose:
(1) a reasonable fee for the cost of time, materials, equipment and personnel in producing the public records; and
(2) the reasonable value of the reproduction on the commercial market as best determined by the public body.
[D.] E. 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 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 4. Section 14-2-12 NMSA 1978 (being Laws 1993, Chapter 258, Section 9) is amended to read:
"14-2-12. ENFORCEMENT.--
A. An action to enforce the Inspection of Public Records Act may be brought by:
(1) the attorney general or the district attorney in the county of jurisdiction; or
(2) a person whose written request has been denied.
B. A district court may issue a writ of mandamus or order an injunction or other appropriate remedy to enforce the provisions of the Inspection of Public Records Act.
C. The exhaustion of administrative remedies shall not be required prior to bringing any action to enforce the procedures of the Inspection of Public Records Act.
D. The court shall award damages, costs and reasonable [attorneys'] attorney fees to any person whose written request has been denied and who is successful in a court action to enforce the provisions of the Inspection of Public Records Act. A public body may recover costs and reasonable attorney fees if the court action brought against the public body is frivolous or the public body prevails."
SECTION 5. A new section of the Inspection of Public Records Act is enacted to read:
"[NEW MATERIAL] COMMERCIAL PURPOSE.--
A. If a person requests to inspect public records for a commercial purpose, the person shall provide a statement in the person's request setting forth the commercial purpose for which the public records will be used.
B. If the custodian of a public record determines that the commercial purpose stated in the statement is a misuse of public records or is an abuse of the right to receive public records, the custodian may apply to the governor requesting that the governor by executive order prohibit the inspection. The governor, upon application from a custodian of public records, shall determine whether the commercial purpose is a misuse or an abuse of the public record. If the governor determines that the public record shall not be provided for the commercial purpose, the governor shall issue an executive order prohibiting the inspection. If the governor does not issue an order within thirty days, the custodian shall permit the inspection upon being paid the fees determined pursuant to Section 14-2-9 NMSA 1978.
C. A person who obtains a public record for a commercial purpose without indicating the commercial purpose; for a noncommercial purpose and uses or knowingly allows the use of the public record for a commercial purpose; for a commercial purpose and uses or knowingly allows the use of the public record for a different commercial purpose; or from anyone other than the custodian of the records and uses the records for a commercial purpose, in addition to other penalties, shall be liable to the public body for:
(1) damages in the amount of three times the amount that would have been charged for the public record had the commercial purpose been stated, plus costs and reasonable attorney fees; or
(2) the amount of three times the public body's actual damages if it can be shown that inspection of the public record would not have been allowed had the commercial purpose of actual use been stated at the time of the request of the records."
SECTION 6. A new section of the Inspection of Public Records Act is enacted to read:
"[NEW MATERIAL] INJUNCTION--PERSONS SERVING IN CORRECTIONAL FACILITIES.--A public body may obtain an injunction against filling a request from a person who is serving a sentence in a correctional facility if the public body can show that the request:
A. was made to harass or intimidate the public body or its employees;
B. was in retaliation for an action by the public body;
C. creates an undue burden on the public body; or
D. was made to assist in criminal activity."
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