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Clerks charging for copies of court files—even digital reproductions

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STANLEY B. MILAM
February 17, 2012
— Getting copies of court files can be a time-consuming, expensive process.

In most cases, court workers must retrieve the case file, take it apart, copy the material requested, reassemble the file, put it back into storage and process the per-page fee. The person requesting the copies is then charged $1.25 a page.


Some journalists say technology exists that could save government employees time and money while reducing the cost of copies to the public.


So why not allow electronic copies? One could simply go through a file to find the desired pages, copy them electronically with a handheld phone or scanner, return the file to the clerk and leave without incurring a cost.


The process isn't as simple as it sounds.


The issue surfaced in December at the Walworth County Clerk of Courts office, and the outcome remains unclear.


Stephanie Jones, a reporter for The Journal Times newspaper in Racine, was involved in an incident that has drawn discussion from the Wisconsin Department of Justice, the Supreme Court of Wisconsin and the Wisconsin Freedom of Information Council.


The basic question is whether electronic copies of court files generated by the public without the assistance of office staff should be subject to the per-page fee.


Jones and the Wisconsin Freedom of Information Council say "no." State agencies, however, disagree.


"I was making copies with my iPhone," Jones said. "We should not have to pay a fee for that. We're not using the clerk of courts' staff time, ink, paper or equipment. There's no cost to them."


Walworth County Clerk of Courts Sheila Reiff sees it differently.


"First of all, this is not an issue of technology," Reiff said. "We have no problem with making copies with cameras, iPhones, hand scanners or any other electronic devices. The issue is the fee."


Reiff pointed out directives and interpretations from both the justice department and the supreme court that say copy fees should be charged regardless of the method used.


"District 2 rules require a $1.25 per-page fee for paper copies," Reiff said. "An attorney general's opinion from 2005 said we should charge the regular page fee for electronic copies as well."


A Feb. 6 letter to Jones from the attorney general's office affirmed the 2005 opinion cited by District 2.


"While it may be undesirable to you to be charged for photographic copies of records that you created with your iPhone … the public records custodian controls how copies are to be made and may charge for them," wrote Clayton P. Kawski, an assistant attorney general. "This is the state of the law, and it would be up to the Legislature to update the public records law in light of recent technology."


Reiff said she agreed with Kawski's conclusion.


"Perhaps the Legislature should take a fresh look at this issue," she said. "But for now, we are required to charge the fee."


Wisconsin Freedom of Information Council President Bill Lueders says the ruling on electronic records is wrong.


"This gets down to some basic questions and definitions," Lueders said. "What is a copy? If we sit there and take detailed notes, word for word, is that a copy? If I have a photographic memory and I can look at a page and go back to the office and type it in, word-for-word, is that a copy? Could they charge me the fee for that? Where do you draw the line?"


Lueders has asked Attorney General J.B. Van Hollen to "reconsider the conclusions" reached by Kawski in his letter.


"We do not believe that the statutory language cited can reasonably be interpreted to allow a clerk to require requesters to pay $1.25 per page for every record they photograph with their own camera or phone," Lueders said in his Feb. 13 letter to Van Hollen. "A requester who asks to ‘inspect' a record, and not to ‘receive a copy of a record' violates no law by taking a photograph of that record and cannot lawfully be charged the same as a requester who requested and received a photocopy of the record made on government equipment."


Dana Brueck, a spokeswoman for Van Hollen, said his office has received the letter and "will consider their points and respond.


"Assistant Attorney General Kawski was interpreting the existing case law, which we are bound to follow," Brueck said. "Regardless of the law, we encourage records custodians to do their best to make sure that people can have access to public records and are not required to incur excessive costs to copy records."



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