What are the Requirements for Commercial Public Records Requests?

School Districts, just like any other political subdivision of the State of Arizona, have statutory responsibilities to respond to public records requests.  For the most part, these public records requests are submitted by private citizens only seeking the information for their own personal purposes.  However, some public records requests are made for what the Arizona Legislature has deemed a “commercial purpose.”   It is important to note that commercial public records requests differ from conventional public records requests as the School District is permitted to charge additional fees and the requestor is required to submit a statement outlining the purpose for which the records requested are being sought.  Please review the following.

A “commercial purpose” is defined in Arizona Revised Statutes (“A.R.S.”) §39-121.03(D) which states,

“For the purposes of this section, ‘commercial purpose’ means the use of a public record for the purpose of sale or resale or for the purpose of producing a document containing all or part of the copy, printout or photograph for sale or the obtaining of names and addresses from public records for the purpose of solicitation or the sale of names and addresses to another for the purpose of solicitation or for any purpose in which the purchaser can reasonably anticipate the receipt of monetary gain from the direct or indirect use of the public record. Commercial purpose does not mean the use of a public record as evidence or as research for evidence in an action in any judicial or quasi-judicial body.”

This definition includes not only the direct resale of the information itself, but also any reasonably anticipated monetary gain the public records requestor expects to gain from the direct or indirect use of the public records.  For example, if a corporation seeks a list of all parent or student directory information (assuming that such information is not confidential and immune from public disclosure) for the purposes of adding those parents to the corporations product mailing list, then then the public records request would be considered made for a “commercial purpose” as that requesting corporation is going to use the information for solicitation purposes.

When a School District receives a commercial public records request, or a records request that is suspected to be for a commercial purpose, the School District is permitted to demand from the requestor a written statement outlining the purpose that the records will be used for as well as charge fees in addition to those permitted for a non-commercial purpose public records request.  A.R.S. §39-121.03(A) provides,

“When a person requests copies, printouts or photographs of public records for a commercial purpose, the person shall provide a statement setting forth the commercial purpose for which the copies, printouts or photographs will be used. Upon being furnished the statement the custodian of such records may furnish reproductions, the charge for which shall include the following:

  1. A portion of the cost to the public body for obtaining the original or copies of the documents, printouts or photographs.
  2. A reasonable fee for the cost of time, materials, equipment and personnel in producing such reproduction.
  3. The value of the reproduction on the commercial market as best determined by the public body.” Emphasis added.

What the statute requires is that the requestor must provide a written statement which accurately describes the commercial purpose the requestor intends to use the requested records for.  The School District is obligated by statute to request this statement, and no records should be provided until it is obtained.

Once the statement is obtained, the School District may charge fees for the records.  The fees are required by statute to include a portion of the School District’s costs in obtaining the records, a reasonable fee for the time and materials expended by the School District in preparing the records, and the market value of the records being requested.  The School District’s costs in obtaining and preparing the records are traditionally assigned by School District policy or the School District Governing Board and include such items such as the per page cost, a portion of the hours expended by School District staff in making the copies, a portion of the cost to the School District in collating the records, and a portion of any other costs the School District may incur in preparing the requested records.

The most difficult portion of the fee structure is market value, which is outlined in A.R.S. §39-121.03(A)(3).  The determination of the market value of the records does not lend itself to a simple and discrete calculation.  The market value of public records is also highly subjective; meaning that the value will change based on what records are requested, what purpose they are to be used for, and current market forces.  Until the commercial public records requestor provides the written statement outlining the purposes the requested records will be put to it is difficult for the School District to identify a methodology for determining market value.

Whatever the methodology may be, it must be approved by the School District Governing Board, or the School District Governing Board’s assigned representative, prior to the School District imposing the charge.  It is important to note that the methodology adopted by the School District Governing Board must be objectively reasonable, not “shock the conscience”, be demonstrably connected with the commercial market, and be applied evenly to all entities that request the same or similar information.

It is important to note that the School District is equally bound to provide public records to a commercial purpose public records requestor as it is bound to provide public records to a non-commercial purpose public records requestor.  This of course assumes that the record is not exempt from disclosure pursuant to statutory or common case law which renders the record confidential.  The School District must carefully review each record to determine if it is within the parameters of the request, if it needs to be redacted, and if there is any applicable law which prevents disclosure altogether.

To sum up, once the School District receives a commercial purpose public records request, or suspects that a public records request is for a commercial purpose, the School District must first demand that requestor submit a statement outlining the purpose the records will be used for as required in A.R.S. §39-121.03(A).  Once that statement is received, the School District must then determine the market value of the records requested (which will be heavily dependent on the purpose outlined by the requestor in the statement).  Once market value is determined, the School District can proceed with collating, reviewing, and redacting any records legally permitted to be disclosed.  When the final list of documents are copied and prepared, the School District must then invoice requestor for the School District’s costs in preparing and copying the records in addition to the market value of the materials.  Once the requestor pays these fee amounts, then the School District may release the requested records to the requestor.

 

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Commercial Public Records Requests, or any other estate planning matters, please feel free to contact at  480.461.5300, log on to udallshumway.com,  or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.