Access to Electronic Records

A state-by-state guide to obtaining government data

Reporters have a tool that allows them to report on entire populations and do original analysis on a subject for their stories, rather than relying solely on anecdotes. Computer-assisted reporting helps journalists do important stories that otherwise would not be covered.

In 1999, reporters for the Miami Herald used voter databases to show widespread fraud in the city’s mayoral election. The series overturned the election results and won the staff the 1999 Pulitzer Prize for investigative reporting.

In 2002, Washington Post reporters used databases to show the District of Columbia’s role in the neglect and death of 229 children in protective care. The series prompted an overhaul of the child welfare system there and earned the 2002 investigative Pulitzer.

But not all computer-assisted stories are done by large metropolitan newspapers that win Pulitzer prizes. Around the country small and medium-sized newsrooms use databases to track government corruption or systemic difficulties in a local or state agency.

But to use this tool, reporters need access to government databases. Access to electronic records often can be difficult for reporters, depending on how a particular state treats computerized information.

Prohibitive fees, privacy regulations, proprietary software and laws that don’t necessarily address access to databases can be barriers to journalists acquiring electronic information.

When reporters at the Detroit News requested a database of driver records, they were told that it would cost about $43 million. New legislation in Michigan allows for per-record charges on driver data. In many states, access to driver data was eliminated because of state responses to the federal Driver’s Privacy Protection Act.

When the San Jose Mercury News wanted county assessment records, it was told that a local statute allows the assessor to charge $40,000 for the database.

When the Mercury News sought a copy of the database listing information on participants in the state’s “Adopt-a-Highway” program, its request was denied because it ostensibly infringed on the participants’ privacy — even though their names are already displayed on highway signs.

When a (Harrisburg) Patriot-News reporter tried to get records from Pennsylvania’s Department of Education, the only information he could get was in PDF format on the agency’s Web site. Because PDF files are difficult to put into databases, he requested another format. The agency denied the request, saying that the information was not in their possession, but rather in the hands of a vendor in Minnesota. Providing the data would take two months to prepare and cost about $7,000. Although state governments are becoming increasingly aware of — and responsive to — changes brought by the new technologies, conflicts over electronic records access remain common.

A 2001 survey by the National Archives and Records Administration of more than 150 federal agencies and departments concluded that most federal agencies are still baffled by electronic records. According to the survey, most create documents in electronic formats, but when preserving them as official records, print them on paper and put them into storage.

"Government employees do not know how to solve the problem of electronic records — whether the electronic information they create constitutes records and, if so, what to do with the records,” NARA said in a report written with help from information technology firm SRA International Inc.

In some states, government agencies contract with private companies for data processing. In some cases, because private or quasi-government agencies have the agencies’ data, the information has not been disclosed. In other states, courts have said that if the private organization is doing government business, then the information should still be available.

Is electronic information public?

A growing number of states now include electronic data in their definitions of what constitutes a public record. As government increasingly conducts its business electronically, access to computerized records becomes essential. The public must have access to electronic records or lose any meaningful way to oversee government activity. Yet agencies often resist opening their computerized records to requesters.

According to a report from the National Association of Legislative Information Technology (NALIT): “All 50 states and the District of Columbia include computerized records in their definition of public records, either specifically in the statutory language or through judicial interpretation.”

Since September 11, however, some states are rethinking how they make information available. Some have curtailed the amount of information they are putting online and, in some cases, agencies have removed information.

Can a requester choose the format?

Agencies and requesters often disagree over the particular physical format — paper, tape or diskette — for delivering public records.

The format in which data are released is often as critical as the disclosure itself. A printout of raw data may be as useless to journalists as a pile of unorganized documents. One New York City department refused to provide a copy of a computer tape to a publisher. Instead, the agency proposed that the requester pay for a printout that would take five or six weeks to print, exceed one million pages in length, and cost $10,000 for paper alone.

In some cases, when raw data isn’t available, news organizations must create a database from the paper documents. Because campaign finance information is not in a database in Missouri, the St. Louis Post-Dispatch entered the data into a computer.

How much will it cost?

The National League of Cities resolved in December 1993 that cities and towns should set higher fees for electronically stored public information to offset and recoup the costs of developing better computer systems. Since that time, many states have enacted laws or administrative regulations outlining fee structures for access to electronic records. Most states either charge “reasonable fees” or “actual costs.” However, what fees agencies believe are reasonable and what may be considered an actual cost varies widely among the states.

Many officials try to recoup more than costs. These agencies try to use electronic records to generate revenue for the government’s coffers. Members of the public point out that they already paid for electronic information systems through their taxes.

Is software a public record?

In most cases, reporters do not need agency software and can use just the underlying data. However, in some cases, customized software does not allow for easy data extractions. There have been disputes over whether requesters may obtain copies of specific software to read coded electronic records. Many states now address this issue in their statutes.

According to the NALIT report, state legislatures have amended their open records statutes to exempt agency-developed software. “Currently 20 states have statutes that exempt software in some way, and the attorneys general of Michigan, Mississippi and Nevada have issued opinions exempting government software. Alaska, Florida and Kentucky specifically include software in the definition of public record.”

Copyright issues arise when requesters seek some types of commercially produced software. Commercial software is privately produced and licensed to the government, and the producers believe that the government is just like any other licensee.

Some software may be prepared by a state agency or a state university. The state-created software is arguably not proprietary since it was created using state money. However, unlike the federal government, which does not copyright public information, some states claim that they may copyright items such as statutory compilations and computer programs.

In Nevada, a computer program was set up to randomly select recipients of the limited number of hunting permits issued by the state. Hunters complained that permits were not distributed fairly. But when citizens asked for a copy of the software to test how random the selections were, the Nevada attorney general advised that government-written software is not a public record.

But the Florida attorney general advised that copyrighted computer software that was licensed by a county from a private company and used for compiling county data was a public record. The opinion said the software must be made available to the public for examination and inspection only. Unauthorized reproduction of copies of the software was prohibited by federal copyright law. Since then, the Florida legislature has allowed state agencies to hold copyrights from software they develop and charge license fees for its use, so long as public access to records is not compromised.

Can government pump up the price for useful systems?

A growing number of state legislatures want to make money off of specialized computer systems called “geographic information systems. These systems manipulate large databases of information by overlaying the data on regional maps. Such GIS are tempting cash cows for municipalities because commercial organizations, such as mail order companies, are often willing to pay for access to these databases.

When reporters at The Modesto Bee tried to get electronic mapping files of voting precincts, the county elections office refused, offering paper or PDF files instead. The officials claimed that, because it took county workers many hours to create the files, the data should be protected work product. Unfortunately for them, California law covers this only if the government workers had created the programming language. In this case, the county used ArcView, a commercial mapping software. The reporters ended up getting the mapping files, but got them too late to do the story for which they needed them.

Online information

Many states provide frequently requested information on Web sites. And in some states, legal requirements mandate that some information be online.

California mandated in 1994 that all state statutes, the state constitution and current legislative information be made available in electronic form through the Internet. In recent years, every state has placed varying amounts of information online. Some provide only a home page; others post statutes, case law, governmental information and agency reports online.

This guide addresses in more detail many of the issues raised earlier concerning electronic records access. In addition, the guide provides a state-by-state summary of key issues regarding electronic information.