A reporter reviewing state Health Department records recently was told she couldn’t take photos of the documents with her smartphone.
“The requestor must designate the records to be copied with the use of paper markers, post it notes or other non-destructive means,” each policy states.
But these policies contradict a 2006 Attorney General Opinion.
The right to copy records means requesters have the right to use their “own copying equipment … as long as [that] copying process does not unreasonably disrupt the essential functions of the public body or result in defacing or loss of such records,” the opinion stated.
2006 OK AG 35 explained:
Nowhere in the Act does the law prohibit requesters of records from making copies of such records themselves, nor does it require that copies of the requested documents must be made by an employee of the public body. For years, companies or individuals have made manual notes and sometimes even microfilm of information in public records, such as recorded land title instruments.
A digital camera or an electronic scanner is a copying device, as are a pen and paper or a photocopy machine.
The use by a requesting person of own copying equipment is not prohibited by the Act and must be permitted by the public body as long as such person’s copying process does not unreasonably disrupt the essential functions of the public body or result in defacing or loss of such records.
State Health Department workers backed off their ridiculous ban after speaking with the agency’s attorney.
And the state Education Department doesn’t enforce its policy, an agency attorney said Wednesday.
Not removing the “complete prohibition on writing instruments from the more recent versions of the Open Records policy” was an oversight, Assistant General Counsel Lori Murphy wrote in an email responding to my inquiry about the policy.
“So while technically that policy is still ‘in effect’ because it is included in the policy on file with the county, OSDE does not enforce a ban on writing instruments for accessing agency records in general,” Murphy wrote.
The agency is planning to update its Open Records policy “and that provision is due for a change,” Murphy wrote, adding:
If a provision restricting writing instruments is included in the updated policy, we will clarify that this would only apply in a situation where someone requests access to a record that exists as a unique hard copy, and provide for copying such a record by other means. (The agency does hold some very old, paper school records in off-site storage that date back many decades—this is the only scenario we can think of where such a restriction may still apply.)
Such a narrow policy makes sense. The AG Opinion noted that “security of the original documents is a separate, valid issue” and that “protection of public records might reasonably include limiting access to original records by the public or limiting public access to work areas of agency personnel.”
Having an agency employee involved when records are inspected or copied would be “reasonable and proper,” the opinion concluded. “Supervision of inspection or copying of records becomes particularly crucial when old, fragile paper records are involved, or where the records are in an electronic format that is susceptible to modification or deletion.”
As Murphy of OSDE noted, “There are some contexts where a restriction on writing instruments would still be advisable.”
But a blanket ban on the public using a pen or pencil to take notes when reviewing records violates both the letter and spirit of the 2006 AG Opinion and the state’s Open Records Act.
I sent emails today to the other public bodies asking about their policies. I’ll let you know what they say.
I hope their responses will be as reasonable as OSDE has been on this issue.
Joey Senat, Ph.D.
OSU School of Media & Strategic Communications
Mass Communication Law in Oklahoma
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, its board of directors or the commentator’s employer. Differing interpretations of open government law and policy are welcome.