Back in 1996, high school journalists in Palo Alto, Calif., got a tip that administrators in their school district were running up huge dinner tabs on the taxpayers’ dime. When the school district quoted a prohibitive fee for access to records of credit-card purchases, an enterprising student reporter borrowed a portable copier from his grandfather’s office, wheeled it into the district headquarters, and duplicated the records free of charge, enabling The Campanille to break a scoop about unauthorized meal tabs on government expense accounts.
Fast-forward two decades, to a world where 64 percent of all Americans own a phone capable of doubling as a copier/scanner, and making duplicates of public records ought to cost no more than a click. But government agencies haven’t always welcomed do-it-yourself copying, which costs them a revenue source and eliminates a back-door method of obstructing public access.
Pennsylvania is the latest state to make clear that the right to inspect public records includes the right to photograph them. In a ruling issued Aug. 14, the state Office of Open Records found that a township police department violated Pennsylvania’s Right to Know Law (“RTKL”) by preventing a requester from taking photos of expense-account documents.
Hearing officer Kathleen A. Higgins noted that the Right to Know Law expressly contemplates waiving the customary copying fee when a requester makes his own copies. It would be “absurd and unreasonable,” she wrote, to forbid requesters from using their own resources to save money on copying fees — whether that means taking a smartphone picture of a document, writing down its contents, or dictating the contents into an audio recorder.
Pennsylvania joins a growing number of states allowing citizens to use technology to fight back against open-records fees that often serve, intentionally or not, as a deterrent to public access.
In recent years, state attorneys general in Arizona and Kentucky have directed government agencies to allow requesters to make their own copies or scans without charge. State statutes in Connecticut and Florida provide that requesters cannot be prevented from photographing or scanning records, and a court ruling in Louisiana likewise entitles the public to duplicate records using portable copying devices.
While it predates smartphones by two generations, a 1962 court ruling in Illinois, People ex rel Gibson v. Peller, holds that the common-law right of access to records necessarily implies the right to photograph them as well:
Modern photography is accurate, harmless, noiseless and time saving. It does nothing more than capture that which is seen with the naked eye. Neither defendants nor the public can be harmed by the reproduction of the records exactly as they exist. The fact that more modern methods of copying are devised should not lessen the basic right given under the common law.
With the addition of Pennsylvania, at least seven states now expressly say that the right of access to public records includes the right to make self-service copies, including smartphone photos. Even in states without an explicit right, requesters should assume that any record that could legally be transcribed with a pen-and-pad is equally legal to photograph — and if a government custodian balks, make the agency identify a legal basis for refusing.