From The Indianapolis Star:
Q: I’d like your advice on how to proceed with a public records request response from the Department of Natural Resources that includes a $400 finders fee. That seems awfully expensive.
I think DNR is looking at the wrong area regarding a charge for the retrieval of the records. IC 5-14-3-8(g) was added by the legislature to allow a public agency to charge a requester for the cost of a CD, flash drive, etc., and recover the costs of what they normally sell information for if it was put into a book. That doesn’t apply to running a program to retrieve the records you seek.
A: What I don’t know, based on the DNR response, is whether “a restore action” requires programming or is a function that already exists in their computer system.
If it requires programming, then the DNR could charge you “the direct cost of reprogramming a computer system” under IC 5-14-3-6(c). But if the function already exists in the system, I can’t see very much effort in programming it for the parameters sought. (Caveat: I’m not an IT person, so how easy or hard to do the “reprogramming” for your request is an unknown variable for me.)
Touch base with the IT people at your newspaper about what “a restore action” entails – actual programming or filling in the blanks of a function to determine the search parameters. That might help you determine whether the direct costs are really $400.
Depending on the answer from your IT experts, you may be able to argue that “a restore action” isn’t “reprogramming,” so there should be no fee. Or you may be able to argue that, yes it’s reprogramming, but the reprogramming only takes 10 minutes so that shouldn’t translate to $400 in direct costs.
Regardless, the discussion should center on 6(c) not 8(g).
Contact Steve Key, HSPA executive director and general counsel, with media law questions at email@example.com or (317) 624-4427.