During a City Council meeting on the evening of June 17, Durango’s revamped “Policy Regarding Access to Public Records” was quietly passed as a line item on the council’s consent agenda, which requires no public discussion.
By and large, Durango’s new policy to charge 25 cents per page after the first ten pages of copied public records, and to charge an hourly fee of $30 for document research exceeding 15 minutes, is neither unusual, nor outside Colorado Law Regarding Public Records. It was because the policy is relatively common that it was included on the council’s consent agenda, where “noncontroversial” amendments are routinely passed without council discussion unless requested by a council member or citizen.
The hiccup comes near the bottom of the policy’s discussion of “Fees and Charges,” which reads simply, “Photographing of public records will not be allowed.”
“That throws me,” said Thomas Kelley, president of the Colorado Freedom of Information Council. “If the documents are very sensitive they might want someone to supervise, and that could be charged, but I’ve never heard you can’t take photos.”
Durango City Attorney David Smith confirmed that photographing of public records will indeed be prohibited.
“We’re not interested in letting people come in, take photos and go without paying,” he said.
The legality of this is somewhat muddled because, according to Colorado Law, city clerk offices are only allowed to recoup the costs of finding and reproducing documents. If, as in the case of a photographed document, the cost of duplicating the document is defrayed, any charge to the requestor outside of research fees becomes questionable.
“It saves them the time and the expense to take your own picture and it’s not a profit making venture. The cost is no valid reason. They’re not permitted to make a profit,” Kelley said.
Amy Phillips, Durango City Clerk, said that recouping costs is just one of the reasons her office won’t allow people to photograph public records.
“When somebody takes a photograph, they don’t mark what they took photographs of, so we have almost no idea what records they ended up with,” Phillips said. “What we do in a records request is give a copy to the requestor and make a copy for ourselves as an invoice. It’s basically just a security measure so city to know what documents are out there.”
This policy of double charging taxpayers to produce internal copies of documents is questionable, given that clerks have to pull the documents to begin with. It also goes against Durango’s professed commitment to “Leading by Example” in sustainability:
“The city serves as a community leader by conducting its operations in a manner that promotes economic vitality, social equality, and environmental stewardship to enhance the quality of life for the citizens of our community for present and future generations.”
In a time when many public records requests are digital to begin with and the ready availability of cell phone cameras makes digital reproductions feasible for almost everyone, Kelley feels the city has a civic and even legal duty to amend its public records policy.
“To say ‘We’re going to make you buy copies, you can’t use your phone to make them,’ is not only backwards, I think it’s wrong under the statute to charge so long as the request isn’t voluminous. We pay taxes for those kinds of requests. That’s part of their job. They’re paid to do that. To try to recover minimal costs on a nickel-and-dime basis from the public is wrong and ought to be stopped.”
The City of Durango’s new “Policy Regarding Access to Public Records” has become difficult to find online, but The Colorado Independent’s screenshots are available here.