May a requester choose to obtain electronic records?

A computer can search through millions of records in a relatively short period. The same task could take a reporter weeks or months of searching through paper records. So the format in which the information is produced is crucial. The requester’s right to demand that information be provided in a computer printout, a computer tape, a CD-ROM or some other form varies by state — so the format can render data very useful or practically useless.

Agencies also may provide information in an electronic format that still renders it useless to a reporter. As states create searchable databases on their Web sites, reporters use them to look up individual cases, but if a reporter wants to do further analysis with the entire database, some agencies balk, saying the information is available online. In other cases, information may be available in formats such as PDF files that make analyzing them difficult.

The states deal with this issue in a variety of ways. When electronic records are sought, Oregon requires an agency to “provide copies of the public record in the form requested if available.”

In California, government agencies used to be able to pick the format that they wanted to provide, but a 2001 amendment to the public records act said that requesters could get electronic files if they requested them and the agency had them in that format.

Virginia gives the agency discretion to “convert” a record to another format to satisfy a request when the document does not already exist in the requested format. The statute requires that electronic records must be “reasonably accessible.”

Some statutes that do not refer specifically to electronic records require agencies to adopt “reasonable” rules and regulations regarding access and copying. It may be possible to argue that such a provision applies to a request for release of information in a specific format.

Even when an agency has discretion over the format, some courts have allowed requesters to challenge very unreasonable agency action as an abuse of that discretion. Other courts have decided that requesters have affirmative rights to obtain computer tapes or disks. In one of the earliest cases on the subject, the New Mexico Supreme Court said “the right to inspect public records should . . . carry with it the benefits arising from improved methods and techniques of recording and utilizing information contained in those records.” The court ruled that political organizers had a right to a copy of a computer tape.

The Ohio Supreme Court ruled that an agency must allow copying of portions of computer tapes if the requester has presented a legitimate reason why a paper copy of the records would be insufficient or impractical.

The Georgia Court of Appeals implied that an agency cannot discriminate against future requesters when the agency provides computer tapes to one private entity. The court affirmed a deal struck by the county commissioners to supply computer tapes to a business, provided that the county did “not exclude any other individual or company from access to such records on an equal basis.”

Utah agencies may not deny access because information is stored electronically. An agency must provide that information in a particular format if the agency can comply without “unreasonably interfering with the government entity’s duties and responsibilities.” Additional fees may be added for such a service.

The Kentucky Attorney General’s Office said in an August 2002 opinion that a computer crash was no excuse for the Elsmere Police Department’s decision to deny records and said that the police department’s efforts to retrieve information requested under the state’s Open Records Act were “inadequate.” The inability of a requestor to obtain information reflects poor records management, the opinion said. “Electronic record-keeping is to enhance access, not to impede access.”

Some states may permit requesters to copy electronic records with their own equipment if the agency cannot do so.

However, when a requester asked an agency to temporarily turn over original disks because the agency could not make a copy in the format requested, the Arkansas Supreme Court ruled in 1987 that the agency need provide only computer printouts. The court reasoned that a request for access to original disks was a request for equipment rather than information.