New Mexico
It remains unclear
in New Mexico whether a government agency that provides a computer printout
is satisfying a public records request. The statute allows an agency to provide
a hard copy partial printout of data containing the public information if “necessary
to preserve the integrity of the computer data or the confidentiality of exempt
information.”
The law.
The Public Records Act defines public records as “all documents . . . tapes
. . . and other materials, regardless of physical form or characteristics.”
N.M. Stat. Ann. § 14-2-6. The statute requires “proper and reasonable
opportunities” to inspect and examine public records. § 14-2-7. If
a computer database contains both exempt and nonexempt information, “a
partial printout of data containing public records or information may be furnished
in lieu of an entire database” to “preserve the integrity of computer
data.” § 14-2-9. Absent exemptions, information contained in state
databases is considered a public record and shall be subject to disclosure in
printed or typed format by the state agency that inserted the information into
the database.” § 14-3-15.1.
Additionally, §
14-3-15.1(c) provides specifically that “information contained in information
systems databases shall be a public record,” but some restrictions and
variations on access to this information exist, including the payment of a “reasonable
fee.”
A different article states that “no attorney, health care provider or their agents shall inspect, copy or use police reports or information obtained from police reports for the purpose of the solicitation of victims or . . . relatives of victims of reported crimes or accidents.” § 14-2A-1.
A statute that
regulates agency practices related to the preservation of records describes
public documents to include “documentary materials, regardless of physical
form or characteristics.” § 14-3-2(C). Under the recent Electronic
Authentication of Documents Act, which allows individuals to “sign”
electronic documents, the state secretary shall adopt regulations allowing for
reasonable public access to public keys (which decode the authentication) maintained
by the Office of Electronic Documentation. N.M. Stat. Ann. § 14-15-5 (Supp.
1997). Under the act, “document” is defined as including “correspondence,
agreements, invoices, reports, certifications, maps, drawings and images in
both electronic and hard copy formats.” § 15-15-1.
The Inspection
of Public Records Act specifically provides that the act should not be construed
to require a public body to create a public record. § 14-2-8(B), NMSA 1978.
Under the specific computer database statute, § 14-3-15.1, a customized
search is discretionary.
Cases &
opinions. Computer tapes are not exempt from the statute merely because
of their format. Political organizers had a right to a computer tape listing
county voters; disclosure did not create special privacy concerns. 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 these records, so long as proper safeguards are exercised as to their use,
inspection and safety.” Ortiz v. Jaramillo, 483 P.2d 500 (N.M. 1971).
In September 2001,
a New Mexico district judge imposed $29,000 in damages on the state Department
of Public Safety for failing to provide either the arrest records or justification
for withholding them. (Cooper v. New Mexico Dep’t of Public Safety)
Fees.
A fees provision was added to the public records statute in 1993. Custodians
may charge “reasonable fees” for copies. Photocopies may not exceed
$1 a page. Advance payment may be required. Fees may not be charged for the
cost of determining whether information is subject to disclosure. N.M. Stat.
Ann. § 14-2-9 (Michie Supp. 1994). However, fees shall be charged if the
information in the databases is “searched, manipulated or retrieved or
a copy of the database is made for any private or nonpublic use.” N.M.
Stat. Ann. § 14-3- 15.1 (1998).
Software.
Software generally is not public record; see § 14-3-15.1 and it is likely
that § 14-2-1(A)(8) and the recent Supreme Court pronouncement in City
of Las Cruces v. Public Employees Labor Relations Board, 121 N.M. 688, 917
P.2d 451 (1996) suggest a narrow proprietary interest of the state might be
protected.
Resources. New Mexico Foundation for Open Government; New Mexico Commission of Public Records