TRANSPARENCY TUESDAY: Does the right to "inspect" public records include the right to Instagram them?

A Colorado city council drew the ire of open-government advocates this summer by voting to ban members of the public from snapping photos of public records to avoid paying copying charges. (It didn't help that the city publicly admitted what everybody privately suspected: That government agencies look at public-records requests as a moneymaking opportunity.)

Since "copying" until pretty recently required the services of a machine the size of a Ford Taurus, it's not surprising that many states have failed to modernize their laws to keep pace with the ability to scan or duplicate documents with a personal handheld device.

Still, the few states that have dealt with the issue are unanimous that the right to inspect government documents includes the right to use a smartphone to capture images of them.

State statutes in Florida and Connecticut were amended in recent years to expressly state that requesters can take photos or make scans of any document they're legally entitled to inspect (with the caution that Connecticut law appears to allow the assessment of a fee of up to $20 per visit even for self-scanned records).

In what appears to be the earliest court challenge of its kind, a state appeals court in Louisiana decided in 2004 that a researcher was allowed to use a handheld device to make scans of maps hanging on the wall of a court clerk's office where records were otherwise openly available for inspection. The judges ruled that, under Louisiana law, members of the public are banned only from "installing" copiers in government offices -- not from hand-carrying portable devices.

In 2011, Kentucky's attorney general agreed. Attorney General Jack Conway said it was illegal for a county clerk to force a requester to pay the office's standard 50-cents-a-page copying charge for using his own handheld scanner, unless the agency could prove that the scanner would damage the documents. (A similar Pennsylvania ruling from 2009 gives requesters the right to make their own copies of audio recordings of public meetings instead of using more costly government contractors.)

This just makes common sense. If there is no legal prohibition against memorizing the document -- or against taking extremely detailed notes that capture every last word on the page -- then a prohibition on photographing it would be the ultimate victory of form over substance. (Nor should just using a camera inside of a government building -- with limited exceptions such as federal courthouses, where you'll never get the camera through the metal detectors, anyway -- be a deal-breaker. Non-disruptively taking a picture of a file does not violate anyone's privacy.)

So if you're trying to save a few bucks by artfully Instagramming those police reports, appointment calendars or meeting agendas-- anywhere other than Durango, Colo. -- snap away.


Tagged: copying charges, open records, public records, smartphone, Transparency Tuesday