Cheyenne Newspapers, Inc., D/B/A Wyoming Tribune Eagle v. The Board of Trustees of Laramie County School District Number One, State of Wyoming , 384 P.3d 679 ( 2016 )

IN THE SUPREME COURT, STATE OF WYOMING
2016 WY 113
OCTOBER TERM, A.D. 2016
November 30, 2016
CHEYENNE NEWSPAPERS, INC., d/b/a
Wyoming Tribune Eagle,
Appellant
(Plaintiff),
v.
S-16-0059
THE BOARD OF TRUSTEES OF
LARAMIE COUNTY SCHOOL
DISTRICT NUMBER ONE, State of
Wyoming,
Appellee
(Defendant).
Appeal from the District Court of Laramie County
The Honorable Thomas T.C. Campbell, Judge
Representing Appellant:
Bruce T. Moats, Law Office of Bruce T. Moats, P.C., Cheyenne, WY.
Representing Appellee:
David Evans and O’Kelly H. Pearson of Hickey & Evans, LLP, Cheyenne,
Wyoming. Argument by Mr. Evans.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
HILL, Justice, delivered the opinion of the Court; DAVIS, Justice, filed a dissenting
opinion with which FOX, Justice, joined.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.
[¶1] This dispute stems from a public records request that Cheyenne Newspapers, Inc.
(the Tribune-Eagle) submitted to Laramie County School District No. One (the School
District). The Tribune-Eagle asked to inspect certain school board member email
communications, and in response, the School District retrieved the emails, downloaded
them to a compact disc, and made the compact disc available to the Tribune-Eagle,
subject to a fee for the time School District staff spent retrieving the records. The
Tribune-Eagle thereafter filed a declaratory judgment action against the School District
requesting a ruling that the Wyoming Public Records Act does not allow a government
entity to charge for access to electronic records when the request is for inspection of the
records and not for a copy of the records. The District Court ruled in favor of the School
District, and the Tribune-Eagle appealed. We affirm.
ISSUES
[¶2] The Tribune-Eagle submits six issues on appeal, which, based on the facts of this
case, we narrow to the following two questions:
1. May a government entity charge for producing a copy of an electronic record
when the public record applicant frames its request as a request only to inspect the
record?
2. May a government entity charge for labor costs incurred in responding to a request
for access to an electronic record?
FACTS
[¶3] On February 11, 2014, the Tribune-Eagle, through one of its reporters, submitted a
public records request to the School District, asking to inspect “[a]ll email on school
board topics to, among or from school board members since Dec. 1, 2013.” Because
school board members use their personal email addresses to conduct school board
business, the request required a search and retrieval of emails from personal email
accounts of the board members as well as from the School District’s computer system.
On March 11, 2014, district superintendant, Dr. Mark J. Stock, responded by letter to the
Tribune-Eagle’s request and advised that a compact disc of the requested emails was
available for pick up at the superintendant’s office. Citing the School District’s policy
governing fees that may be charged for responding to a public records request, Dr. Stock
informed the Tribune-Eagle that it would be charged $110 for the compact disc,
consisting of “[o]ne hour by clerical staff ($20)” and “three hours by professional
personnel (3 x $30).”
[¶4] The Tribune-Eagle asked the School District to reconsider the fee, and when the
School District refused, the Tribune-Eagle filed a declaratory judgment action against it.
1
The Tribune-Eagle sought a ruling that the Public Records Act does not allow the School
District to charge for a request to inspect an electronic record, and it also sought
injunctive relief barring the School District from charging for staff time for any future
inspection or copying of records.
[¶5] Following discovery, the parties filed cross motions for summary judgment by
which they agreed that there were no disputed issues of material fact and that the question
on which a ruling was requested was a question of law. In the School District’s Rule
56.1 statement of undisputed facts, it described the steps required to retrieve the
requested emails and the costs it included in its fee as follows (record cites omitted):
4. After receiving the Newspaper’s request, the
District’s Instructional Technology (IT) department was
instructed to search for emails responsive to the request.
5. Actions taken by the IT network engineer to
search and produce responsive records included creating a
series of computer commands to locate e-mailboxes, filter the
results to only include e-mail to and from board members by
inputting each of their personal e-mail addresses, verifying
the accuracy of the commands, correcting the commands, and
outputting the results into another mailbox for export.
6. The breadth of the Newspaper’s request
required the District’s network engineer to look at every item
on the District’s computer server including e-mail, calendar,
contact, task, and note items.
7. The final step in this process was putting the
results into a single file and exporting or burning the
Electronic Records to a CD.
8. The entire process took several attempts by the
District’s network engineer and several hours of his time and
computer time to run and yield results.
9. Unless a board member’s email is sent and
delivered to someone with a district email address, the email
is not captured on the District’s computer system.
10. The District’s network engineer provided direct
assistance to individual board members such as reviewing the
board member’s computer, personal email account, showing
the board member how to go through her messages.
11. The District did not charge the Newspaper for
these efforts.
12. The superintendant’s executive assistant copied
emails between board members and with the superintendant,
2
received e-mails from board members from their personal
computers and forwarded them to IT.
13. The executive assistant tracked the amount of
time she spent but did not include any of the time she spent
communicating with board members about getting e-mails off
of their personal computers.
[¶6] The district court ruled, as a matter of law, that the School District was entitled to
the fees it charged the Tribune-Eagle for access to the requested emails. The court
reasoned:
7. Resolution of the matter requires the Court to interpret
the statutes that apply to this case. W.S. 16-4-202 and 16-4-
204 recognize that records and documents are routinely
maintained in electronic formats. * * * [W.S. 16-4-202] goes
on to provide that, “the reasonable costs of producing a copy
of the public record shall be borne by the party making the
request. The costs may include the cost of producing a copy
of the public record and the cost of constructing the record,
including the cost of programming and computer services.”
In producing or constructing the record, the District had to
first locate the electronic records and then review the
information to produce the records. The reasonable costs
associated with producing the record may be passed on or
charged to the party requesting the documents.
8. A separate section of the Act generally addresses
inspection and fees: “In all cases in which a person has the
right to inspect and copy any public records he may request
that he be furnished copies, printouts or photographs for a
reasonable fee to be set by the official custodian. Where fees
for certified copies or other copies, printouts or photographs
of the record are specifically prescribed by law, the specific
fees shall apply. Nothing in this section shall be construed as
authorizing a fee to be charged as a condition of making a
public record available for inspection.” W.S. 16-4-204(a).
The statute allows fees to be authorized by statute, rule,
resolution, ordinance, executive order, or other like authority
(W.S. 16-4-204(c)). The District’s Guideline for Electronic
Records clearly sets out the reasonable costs for production of
a public record; such costs are authorized by the Act and that
was the policy utilized in reaching the costs for the
production of the email records.
3
[¶7] The Tribune-Eagle timely filed a notice of appeal to this Court.
STANDARD OF REVIEW
[¶8] We review a summary judgment entered in a declaratory judgment action as
follows:
We review a grant of summary judgment entered in
response to a declaratory judgment action through our usual
standard for review of summary judgments. Arnold, ¶ 13, 201
P.3d at 1132; Voss [v. Goodman], ¶ 9, 203 P.3d [415] at 419
[(Wyo.2009)]. Our review of a district court’s summary
judgment ruling is de novo, using the same materials and
following the same standards as the district court. Arnold,
¶ 13, 201 P.3d at 1132; W.R.C.P. 56(c). No deference is
accorded to the district court on issues of law, and we may
affirm the summary judgment on any legal grounds appearing
in the record. Voss, ¶ 9, 203 P.3d at 419. “The summary
judgment can be sustained only when no genuine issues of
material fact are present and the moving party is entitled to
judgment as a matter of law.” Id. (quoting Wyo. Cmty. Coll.
Comm’n [v. Casper Cmty. College Dist.], ¶ 11, 31 P.3d
[1242] at 1247 [(Wyo.2001)]).
Cont’l Western Ins. Co. v. Black, 2015 WY 145, ¶ 13, 361 P.3d 841, 845 (Wyo. 2015)
(quoting City of Casper v. Holloway, 2015 WY 93, ¶¶ 27–28, 354 P.3d 65, 73 (Wyo.
2015)).
DISCUSSION
[¶9] This appeal presents no disputed issues of fact, and therefore our sole task is to
determine whether the Wyoming Public Records Act allows the School District to charge
the fees it assessed in this case. In particular, we must first determine whether the Act’s
provision governing access to electronic records allows a government entity to charge a
fee for that access under the circumstances of this case. We must then determine whether
the fee charged for access to electronic documents may include labor costs incurred in
responding to the request. Both of these determinations are questions of statutory
interpretation.
[¶10] Our goal of statutory interpretation and the rules that aid us in the task are well
established:
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In any question of statutory interpretation, our primary
objective is to give effect to the legislature’s intent. L & L
Enters. v. Arellano (In re Arellano), 2015 WY 21, ¶ 13, 344
P.3d 249, 252 (Wyo.2015). “Where legislative intent is
discernible a court should give effect to the ‘most likely, most
reasonable, interpretation of the statute, given its design and
purpose.’” Adekale, ¶ 12, 344 P.3d at 765 (quoting Rodriguez
v. Casey, 2002 WY 111, ¶ 20, 50 P.3d 323, 329 (Wyo.2002)).
In light of this objective, we have said:
We therefore construe each statutory provision in
pari materia, giving effect to every word, clause,
and sentence according to their arrangement and
connection. To ascertain the meaning of a given
law, we also consider all statutes relating to the
same subject or having the same general purpose
and strive to interpret them harmoniously. We
presume that the legislature has acted in a
thoughtful and rational manner with full knowledge
of existing law, and that it intended new statutory
provisions to be read in harmony with existing law
and as part of an overall and uniform system of
jurisprudence. When the words used convey a
specific and obvious meaning, we need not go
farther and engage in statutory construction.
Nicodemus v. Lampert, 2014 WY 135, ¶ 13, 336 P.3d 671,
674 (Wyo.2014) (citing Estate of Dahlke ex rel. Jubie v.
Dahlke, 2014 WY 29, ¶¶ 36–37, 319 P.3d 116, 125–26
(Wyo.2014)).
Robert L. Kroenlein Trust ex rel. Alden v. Kirchhefer, 2015 WY 127, ¶ 22, 357 P.3d
1118, 1126 (Wyo. 2015).
[¶11] If a statute is unambiguous, meaning “reasonable persons are able to agree on its
meaning with consistency and predictability,” we look to the statute’s plain language to
determine the legislature’s intent. Meyer v. Fanning, 2016 WY 6, ¶ 17, 367 P.3d 629,
634 (Wyo. 2016). Even where a statute is unambiguous, however, we may resort to
extrinsic aids of interpretation to confirm the meaning the legislature intended for the
terms it used. Kroenlein, ¶ 27, 357 P.3d at 1127, n. 1 (citing Parker Land & Cattle Co. v.
Wyo. Game and Fish Comm’n, 845 P.2d 1040, 1045 (Wyo. 1993)).
5
A. Authority to Charge Fee When Request is to Inspect Electronic Records
[¶12] The Public Records Act provision governing access to electronic records is section
202(d). It provides:
(d) If a public record exists primarily or solely in an
electronic format, the custodian of the record shall so inform
the requester. Electronic record inspection and copying shall
be subject to the following:
(i) The reasonable costs of producing a copy of
the public record shall be borne by the party making
the request. The costs may include the cost of
producing a copy of the public record and the cost of
constructing the record, including the cost of
programming and computer services;
(ii) An agency shall provide an electronic
record in alternative formats unless doing so is
impractical or impossible;
(iii) An agency shall not be required to compile
data, extract data or create a new document to comply
with an electronic record request if doing so would
impair the agency’s ability to discharge its duties;
(iv) An agency shall not be required to allow
inspection or copying of a record in its electronic
format if doing so would jeopardize or compromise the
security or integrity of the original record or of any
proprietary software in which it is maintained;
(v) Nothing in this section shall prohibit the
director of the office of homeland security from
enacting any rules pursuant to his authority under W.S.
19-13-104(d)(v).
Wyo. Stat. Ann. § 16-4-202(d) (LexisNexis 2015).
[¶13] The Tribune-Eagle contends that because its public records request was a request
to inspect existing electronic records and not a request for copies of those records or for
the construction of a new record, the Act did not authorize the School District to charge a
fee for access to the emails of school board members. We disagree.
6
[¶14] As stated above, our primary objective in interpreting a statute is to give effect to
the legislature’s intent. When we read the statutory provisions governing access to
electronic records together and as a whole, we find the legislature’s intent clear. Whether
the request for electronic records is framed as a request to inspect or as a request for a
copy, if the only way for the custodian to provide the record is to produce a copy of it, the
cost of producing that copy is to be borne by the party making the request.
[¶15] We begin with the second sentence in section 202(d), which states, “Electronic
record inspection and copying shall be subject to the following[.]” Wyo. Stat. Ann. §
16-4-202(d) (LexisNexis 2015) (emphasis added). What follows, among other
provisions, is subsection (d)(i), which directs that “[t]he reasonable costs of producing a
copy of the public record shall be borne by the party making the request.” Id. By section
202(d)’s plain terms, then, the requirement that the public records applicant bear the cost
of producing a copy applies to both electronic record inspection and copying. This
makes sense when section 202(d) is considered in light of the challenges presented in
making electronic records accessible.
[¶16] Certain classes of electronic records can be, and are, made readily available for
inspection through the creation of online databases. See, e.g., http://www.sweet.wy.us
(Sweetwater County website providing online access to electronic records including land
records and public meeting agendas and minutes). There are, however, other electronic
records that cannot be made available for inspection without production of a copy. As
the Wyoming Department of Administration and Information advised in its recently
promulgated rules regarding access to state electronic records:
“Electronic public record” is a public record that is
primarily or solely stored in an electronic format. Typically,
the custodian will only be able to produce a copy of the
original electronic public record due to the native format,
security, and integrity of the original data or electronic record.
Wyo. Dep’t of Admin. & Info. Rules, Chapter 2, Section 3(c), 006.0011.2.09062016.
[¶17] The emails requested in this case illustrate the type of records for which the
traditional notion of inspection is a misfit and inspection necessarily requires production
of a copy. It is undisputed that retrieval of the emails requested by the Tribune-Eagle
required special programming to extract the records from multiple email accounts based
on the identities of the sender and recipient, the dates of the emails, and whether the
emails pertained to any school board topic. Indeed, there has been no suggestion that it
was in any way feasible for the Tribune-Eagle to access the requested emails online or in
any manner that did not require the School District to extract the emails and produce a
copy of them. Given that an electronic records request can be framed in any number of
permutations, with search parameters that may or may not coincide with the manner in
7
which the requested electronic records are stored, it is easily anticipated that the types of
programming and extraction that occurred in this case will be required in many instances
where inspection of an electronic record is requested.
[¶18] The legislature presumably understood this characteristic of electronic records and
also understood that certain electronic records could only be made available for
inspection by producing a copy of the electronic record.1 We find it both reasonable and
practical then that the legislature would use the phrase “inspection and copying” as a
deliberate choice to apply section 202(d)(i)’s cost provision to both types of requests.
Jones v. State, 2006 WY 40, ¶ 12, 132 P.3d 162, 165-66 (Wyo. 2006) (quoting State Bd.
of Equalization v. Cheyenne Newspapers, Inc., 611 P.2d 805, 809 (Wyo. 1980) (“Statutes
should be given a reasonable, practical construction.”).
[¶19] To interpret the statutory language otherwise would produce an absurd result. For
those electronic records that cannot be provided without producing a copy, the custodian
expends the same effort and incurs the same cost regardless of whether the request is for
inspection or a copy—and, as in this case, the result is the same, with a copy of the record
being given to the public record applicant. We find it unlikely that the legislature, in such
identical circumstances, would have intended that whether the costs were borne by the
applicant or the custodian would turn solely on whether the applicant framed its request
as one for a copy or one for inspection. See Seherr-Thoss v. Teton County Bd. of County
Com’rs, 2014 WY 82, ¶ 19, 329 P.3d 936, 945 (Wyo. 2014) (In interpreting a statute,
“we strive to avoid an interpretation that produces an absurd result.”).
[¶20] Our reading of section 202(d) is further confirmed by the legislature’s subsequent
adoption of Wyo. Stat. Ann. § 16-4-204(e), which specifically references the charges
allowed under section 202(d)(i). It provides:
The department of administration and information
shall adopt uniform rules for the use of state agencies
establishing procedures, fees, costs and charges for
inspection, copies and production of public records under
W.S. 16-4-202(d)(i), 16-4-203(h)(i) and 16-4-204.
Wyo. Stat. Ann. § 16-4-204(e) (LexisNexis 2015) (emphasis added).
1
It is not unusual for this Court to look to facts and circumstances surrounding a statute’s enactment to
confirm the legislature’s intent. Albertson’s, Inc. v. City of Sheridan, 2001 WY 98, ¶ 7, 33 P.3d 161, 164
(Wyo. 2001) (court may look to facts and circumstances surrounding statute's enactment to ascertain
legislative intent). This is true even when we have concluded that the statute’s language is clear and
unambiguous. See DiFelici v. City of Lander, 2013 WY 141, ¶ 31, 312 P.3d 816, 824 (Wyo. 2013)
(presuming legislature’s knowledge of flooding risks and the associated costs of that risk in interpreting
Wyoming Governmental Claims Act).
8
[¶21] By authorizing the Department of Administration and Information to promulgate
rules establishing not only procedures for inspection of electronic records, but also fees,
costs, and charges for the inspection of electronic records, the legislature has further
affirmed its intent with regard to electronic records. That is, if inspection of an electronic
record requires production of a copy of that record, the costs of producing that copy are
to be borne by the party requesting that access.
[¶22] The Tribune-Eagle offers several arguments against the interpretation we have
given section 202(d)(i). First, it argues this interpretation runs contrary to Wyo. Stat.
Ann. § 16-4-204(a), which provides:
(a) In all cases in which a person has the right to inspect and
copy any public records he may request that he be furnished
copies, printouts or photographs for a reasonable fee to be set
by the official custodian. Where fees for certified copies or
other copies, printouts or photographs of the record are
specifically prescribed by law, the specific fees shall apply.
Nothing in this section shall be construed as authorizing a
fee to be charged as a condition of making a public record
available for inspection.
Wyo. Stat. Ann. § 16-4-204(a) (LexisNexis 2015) (emphasis added).
[¶23] Citing the last sentence of section 204(a), the Tribune-Eagle argues the Public
Records Act bars a public records custodian from charging for making any public record,
including an electronic record, available for inspection. We reject this argument because
it fails to take into consideration the legislature’s decision to treat electronic records
separately and differently. As we discussed above, sections 202(d)(i) and 204(e), the
provisions that apply specifically to electronic records, allow a custodian to charge for
inspection of an electronic record if that inspection requires production of a copy of the
record. Under our rules of statutory interpretation, a specific statute will control over a
general one dealing with the same subject when they are in apparent conflict. Rock v.
Lankford, 2013 WY 61, ¶ 37, 301 P.3d 1075, 1085 (Wyo. 2013) (citing Gronberg v.
Teton County Hous. Auth., 2011 WY 13, ¶ 45, 247 P.3d 35, 45 (Wyo. 2011)). Section
204(a) is a general provision, and we therefore give controlling effect to the charges
allowed under the more specific sections 202(d)(i) and 204(e).2
2
We do not have before us a case in which inspection of an electronic record is feasible without
production of a copy of the record. We therefore do not address how the question would be answered
under those circumstances.
9
[¶24] The Tribune-Eagle next contends that reading section 202(d)(i) to allow charges
for the inspection of electronic records can have a chilling effect on access to public
records and is therefore contrary to our longstanding rule that the Public Records Act be
liberally construed in favor of public access to government information. See Aland v.
Mead, 2014 WY 83, ¶ 12, 327 P.3d 752, 759 (Wyo. 2014) (purpose of Wyoming Public
Records Act is to maintain an open and accountable government); Powder River Basin
Res. Council v. Wyo. Oil & Gas Conservation Comm’n, 2014 WY 37, ¶ 33, 320 P.3d
222, 231 (Wyo. 2014) (Wyoming Public Records Act is to be given a liberal
interpretation in favor of disclosure). While this is a legitimate concern, so too is the
concern regarding the demand public records requests can place on government
resources. See Tae Ho Lee, Public Records Fees Hidden in the Law: A Study of
Conflicting Judicial Approaches to the Determination of the Scope of Imposable Public
Records Fees, 21 Comm. Law & Pol’y 251, 253 (2016) (noting the tension “between the
guarantee of public access to government records and the financial burden on the
government”). Ultimately, how these concerns are addressed and balanced is a policy
question to be resolved by the legislature, and where the legislature has made its decision,
as we have found in this case, we cannot ignore that policy choice in service of a rule of
interpretation. See Lance Oil & Gas Co. v. Wyo. Dep’t of Revenue, 2004 WY 156, ¶ 29,
101 P.3d 899, 907 (Wyo. 2004) (rejecting application of rule that tax exemptions must be
strictly construed where legislative intent to allow exemption was clear); Barlow Ranch,
Ltd. P’ship v. Greencore Pipeline Co. LLC, 2013 WY 34, ¶ 49, 301 P.3d 75, 91 (Wyo.
2013) (“It is not this Court’s prerogative to ignore the legislature’s policy decision.”).
[¶25] As its final argument against allowing charges for its requested inspection, the
Tribune-Eagle contends that the School District should not be permitted to assess a
charge for inspection of the emails requested in this case because the request did not
involve “constructing the record,” as that phrase is used in Wyo. Stat. Ann. § 16-4-
202(d)(i). We need not, however, address whether the phrase “constructing the record”
means creating a new record, extracting and compiling requested records, or something
else. We have already interpreted section 202(d) to require a public records applicant to
bear the cost of producing a copy if the requested inspection requires production of a
copy. It is undisputed that the Tribune-Eagle’s request could only be accommodated by
producing a copy of the requested emails, and we therefore have no need to address
whether there may have been an alternative basis under section 202(d)(i), such as
construction of the record, to allow the charges.
B. Permissible Charges under Wyo. Stat. Ann. § 16-4-202(d)(i)
[¶26] The Tribune-Eagle next argues that if this Court interprets section 202(d)(i) to
allow the custodian to charge the costs of producing a copy of an electronic record for
inspection, those charges are limited to the direct costs of duplication, meaning the copy
costs for a paper copy or the cost of a compact disc or other digital storage device if the
10
copy is in an electronic format. We find no such limitation in the plain language of
section 202(d)(i).
[¶27] Section 202(d)(i) reads:
The reasonable costs of producing a copy of the public
record shall be borne by the party making the request. The
costs may include the cost of producing a copy of the public
record and the cost of constructing the record, including the
cost of programming and computer services.
Wyo. Stat. Ann. § 16-4-202(d)(i) (LexisNexis 2015).
[¶28] The first sentence of section 202(d) states that the costs to be borne by the party
requesting the record are the “reasonable costs of producing a copy.” The second
sentence of section 202(d) refers back to the costs specified in the first sentence and
states what those costs “may include.” We have held that a statute’s use of the term
“include” is significant:
[T]he use of the word “includes” in a statutory context has
specific implications: “The use of the word ‘includes’ is
significant because ‘includes’ generally signifies an intent to
enlarge a statute’s application, rather than limit it, and it
implies the conclusion that there are other items includable,
though not specifically enumerated.”
RT Communications v. State Bd. of Equalization, 11 P.3d 915, 922 (Wyo. 2000) (quoting
Bd. of County Comm’rs of Teton County v. Bassett, 8 P.3d 1079, 1083 (Wyo. 2000)); see
also Mendoza v. State, 2016 WY 31, ¶ 12, 368 P.3d 886, 892 (Wyo. 2016) (quoting
Yager v. State, 2015 WY 139, ¶ 22, 362 P.3d 777, 784 (Wyo. 2015)) (“The word
‘include’ is ‘ordinarily used as a word of extension or enlargement’ and is not a word
used to connote limitations.”).
[¶29] Section 202(d)(i) requires the public records applicant to bear the “reasonable
costs of producing a copy.” The second sentence does not limit the costs but rather
provides examples of the types of costs that may be included. We also find it significant
that the first sentence of section 202(d)(i) refers to “reasonable costs,” in the plural form.
As this case illustrates, given the differences that can exist between the search parameters
of the records request and the manner in which the records are stored, the costs involved
in producing an electronic record may very well extend beyond the cost of the paper copy
or digital storage device used for the copy, to include programming and other computer
services. That the legislature used the plural of the term “costs,” and that it referenced
the cost of programming and computer services as examples of costs, indicates: 1) the
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legislature’s understanding that the costs of producing a copy of an electronic record are
greater than the cost of paper or a digital storage device; and 2) its intention that all of
these types of costs, to the extent they are reasonable, be included in the costs to be borne
by the public records applicant.
[¶30] The Tribune-Eagle again argues against allowing costs beyond duplication costs
on policy grounds. It points out that governmental entities have varying skill levels in
maintaining electronic records and searching those records to respond to a public records
request, meaning charges for the same type of records access may vary from entity to
entity simply because one entity is more efficient than another. The Tribune-Eagle also
points to the unfairness that can result when there are multiple requests for the same
electronic record, with the result being that the first applicant pays all the costs, including
labor costs, and the subsequent applicants pay only the duplication costs. We again do
not disagree that this is a legitimate policy concern. As we noted above, however, these
types of policy questions are for the legislature. For now, the legislature has decided that
the limitation on the costs to be borne by the public records applicant under section
202(d)(i) is that the costs be reasonable, and we have no basis to substitute our own
judgment for that policy decision. To the extent a public records applicant wishes to
challenge the efficiency of a custodian in storing its electronic records and making them
available for inspection, that challenge must be directed to the reasonableness of the
charge imposed for access to the record.
[¶31] Because reasonableness is the limitation on the costs that may be charged a public
records applicant under Wyo. Stat. Ann. § 16-4-202(d)(i), and the Tribune-Eagle has not
challenged the reasonableness of the charge imposed by the School District in this case,
we affirm the district court decision to allow the charge.
CONCLUSION
[¶32] We hold that Wyo. Stat. Ann. § 16-4-202(d)(i) allows a public record custodian to
charge for inspection of an electronic record if the inspection request requires production
of a copy of the record. The limitation on the costs charged is that they be the reasonable
costs of producing a copy. Affirmed.
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DAVIS, Justice, dissenting, in which FOX, Justice, joins.
[¶33] I must respectfully dissent. After studying the Wyoming Public Records Act, I am
convinced that it prohibits governmental entities from charging a fee for the inspection of
electronic records.
[¶34] To provide a complete picture of the situation, it is helpful to expand a bit on the
undisputed facts of this case. Members of the school board historically used their own
personal email accounts for school district business. At some point problems arose with
this arrangement, and the district proposed to provide board members with district email
accounts for district business. However, the board members did not want separate
accounts, and none were set up.
[¶35] As a result, when the newspaper made its request for a little over two months of
board emails, the district could only be certain that it could locate those emails which
might have been sent to persons with district email accounts, which would be on the
server if not deleted, and then would still be there for sixty days after being deleted. It
would not have been in possession of emails sent from the private account of a board
member sent only to accounts of other board members.
[¶36] The district therefore had to request that each board member forward emails
during the relevant period from his or her personal account to the district. In one case, a
board member brought her laptop to the district office so that its information technology
staff could locate the emails.
[¶37] As to the emails that were on the district’s server, the IT manager had only to
develop a search string to locate the emails, although he had to refine the search and
check it to make sure that it was producing the records he wanted to produce. After all of
the emails were gathered from the district’s server and the board members, it was a
simple matter to copy them to a compact disc.
[¶38] The district has a policy which allows it to charge ten cents per page for
documents and twenty cents per CD. The policy also allowed it to charge $20.00 per
hour for clerical time, $30.00 per hour for professional personnel, and $40.00 per hour for
managerial personnel. It advised the newspaper reporter who had sought the information
by letter that it had a CD available upon payment of $110.00, which represented one hour
of clerical time3 and three hours of professional personnel time. It did not attempt to
impose a per page charge, or evidently, a charge for the CD.
3
The district did not charge for the clerical worker’s time spent contacting board personnel to notify them
that the emails were needed, but did charge for the time she spent forwarding emails to the technology
department, printing paper copies that were later shredded, and searching her own computer for relevant
emails.
13
[¶39] The newspaper had not asked for a disc or that copies be made, and it objected to
the charge the district sought to impose to locate the emails which were or should have
been part of its records. If someone else asks for the same emails, the district would
provide them for the cost of the compact disc.
[¶40] Now that the stage is set, I turn to case law that governs issues arising under the
Wyoming Public Records Act. The intent of the Act is “to permit access to public records
unless disclosure would inflict irreparable harm contrary to protected rights.” Houghton v.
Franscell, 870 P.2d 1050, 1052 (Wyo. 1994) (“The object of the public records act is disclosure,
not secrecy.”). This Court has observed that “we would not look to the most general
meaning of those terms and phrases, but rather, would look to their meaning in the context of
the statute and we would do so a fortiori in view of the liberal construction rules applicable to
these statutes.” Allsop v. Cheyenne Newspapers, Inc., 2002 WY 22, ¶ 23, 39 P.3d 1092,
1099 (Wyo. 2002). We have further explained:
By a liberal interpretation, it is only meant that words should
not be forced out of their natural meaning and should receive a
fair and reasonable construction so as to obtain the objects for
which a statute is designed.
Id., ¶ 10 n.2, 39 P.3d at 1095 n.2 (citation omitted).
[¶41] Although imposition of a fee for a member of the public to inspect public records is
not the same as denying access, imposing a cost for inspection could limit the access the Act
was intended to provide. While I have no reason to question the district’s good faith, and can
accept that it only wants to pass on the cost of responding to a request for electronic records,
there can be no doubt that such fees could be used to discourage access.
[¶42] The statute itself provides the answer as to whether the district could charge for
inspection of the documents it retrieves for inspection or not. The majority opinion suggests
that the sections dealing with electronic records and the language prohibiting charging a fee
for inspection of documents are somehow divorced from each other in space and time to such
an extent that the latter applies only to paper documents. However, both provisions were
adopted in the same amendment in the 2002 Special and Budget Session:
16-4-202. Right of inspection; rules and regulations;
unavailability.
(d) If a public record exists primarily or solely in an electronic
format, the custodian of the record shall so inform the requester.
Electronic record inspection and copying shall be subject to the
following:
14
(i) The reasonable costs of producing a copy of the public record
shall be borne by the party making the request. The costs may
include the cost of producing a copy of the public record and the
cost of constructing the record, including the cost of
programming and computer services;
(ii) An agency shall provide an electronic record in
alternative formats unless doing so is impractical or impossible;
(iii) An agency shall not be required to compile data,
extract data or create a new document to comply with an
electronic record request if doing so would impair the agency’s
ability to discharge its duties;
(iv) An agency shall not be required to allow inspection
or copying of a record in its electronic format if doing so would
jeopardize or compromise the security or integrity of the
original record or of any proprietary software in which it is
maintained;
* * *
16-4-204. Right of inspection; copies, printouts or photographs;
fees.
(a) In all cases in which a person has the right to inspect and
copy any public records he may request that he be furnished
copies, printouts or photographs for a reasonable fee to be set by
the official custodian. Where fees for certified copies or other
copies, printouts or photographs of the record are specifically
prescribed by law, the specific fees shall apply. Nothing in this
section shall be construed as authorizing a fee to be charged as a
condition of making a public record available for inspection.
2002 Wyo. Sess. Laws ch. 53, § 1 (underlining in the original indicates text added by the
amendment).
[¶43] It is clear from the juxtaposition of these provisions in the amendment that the
legislature was quite aware of the potential complications of the language it added in § 16-4-
202(d). It added provisions which would allow agencies to compile data if they were willing
to so, and to allow them to charge for gathering the requested information. On the other
hand, it also added the provision in § 16-4-204(a) to make it clear that nothing it had said in
the amendment changed the rule that an entity could not charge for inspection of any record.
15
The base public record – in this case the emails – must be available for free inspection.4 If
the newspaper had requested the district to prepare a report based upon the information in its
database, it could have then charged for the labor required to make the compilation and the
costs associated with it, if it wished to perform the task at all.5 It could not, on the other
hand, refuse inspection. The legislature could have, but did not, include authorization to
charge for the reasonable costs of retrieval. See Ga. Code Ann. § 50-18-71(c)(1) (“An
agency may impose a reasonable charge for the search, retrieval, redaction, and production or
copying costs for the production of records pursuant to this article.”).
[¶44] The majority concludes that the language in § 16-4-202(d) means that the legislature
understood that certain kinds of record could only be made available by copying them, and
so intended to allow a fee to be charged to produce a copy. The plain and
contemporaneously enacted language of § 16-4-204(a) is a clear expression of legislative
intent to the contrary. We presume that the legislature acts with full knowledge of existing
law, and that it intends new statutory provisions to be read in harmony with existing law and
as part of an overall and uniform system of jurisprudence. Nicodemus v. Lampert, 2014 WY
135, ¶ 13, 336 P.3d 671, 674 (Wyo. 2014) (citing Estate of Dahlke ex rel. Jubie v. Dahlke,
2014 WY 29, ¶¶ 36-37, 319 P.3d 116, 125-26 (Wyo. 2014); Rock v. Lankford, 2013 WY 61,
¶ 19, 301 P.3d 1075, 1080-81 (Wyo. 2013); and Redco Const. v. Profile Props., LLC, 2012
WY 24, ¶¶ 26, 37, 271 P.3d 408, 415-16, 418 (Wyo. 2012)).
[¶45] Accordingly, I can only conclude that the legislature anticipated that this Court would
continue to construe the Public Records Act to favor disclosure without imposition of fees
which could burden citizens’ rights to access. It could easily have included language that
made it clear that an entity could charge for inspection of electronic records, but instead it
included language making it clear that no such fee could be charged, without expressly
limiting the language to paper records.
[¶46] Beyond that, to suggest that the legislature intended to allow a governmental entity to
charge for moving data to a location where it can be inspected—which is in my view what
happened here—is contrary to the way things worked and still work in the paper world. The
earliest version of the Public Records Act was adopted in 1969, when it is safe to say that
most records were probably still in paper form. 1969 Wyo. Sess. Laws ch. 145, § 1 (codified
at Wyo. Stat § 9-692.1 (1957)). That earliest version of the statute provided that copies
4
The Act has always required that “[a]ll public records shall be open for inspection by any person at
reasonable times, except as provided in this act or as otherwise provided by law . . . .” 1969 Wyo. Sess.
Laws ch. 145, § 2; see also Wyo. Stat. Ann. § 16-4-202(a) (LexisNexis 2015).
5
The district has a policy which indicates that it will not compile data, extract data, or create a new
document to comply with a record request, as doing so would impair its ability to discharge its duties. It
is expressly allowed by statute to decline to do the things listed in the policy by § 16-4-202(d)(iii). By
virtue of the fact that the district did not invoke this policy, one can safely conclude that it considered the
emails existing public records, and not a compilation, etc. Whether a custodian can simply declare
prospectively that it will always be too busy to provide any data compilations is a question for another
case and another day.
16
could be made at the public’s request, as does the current statute. Id. at § 4; Wyo. Stat. Ann.
§ 16-4-204(a).
[¶47] It is useful to compare the process by which a paper public record had to be
maintained and produced for public inspection before records were kept electronically.6
Assuming that the entity did not simply allow members of the public to search its files and
provide a copy machine for them to use, someone had to find a place to store the record –
probably in a labeled file folder kept in a labeled filing cabinet. Of course, an entity could
simply toss documents in an unorganized pile somewhere, but it would presumably keep its
records in an organized manner for its own use. If a citizen requested to see the
correspondence between board members and between board members and district employees
for a month or so, some person had to locate the documents in question, which would
naturally be easier if the records were kept in some organized fashion. The records would
probably have had to have been brought to a location where the citizen could inspect them
without interfering with the entity’s ongoing activity.
[¶48] If the inspector wanted a copy of a document, someone working for the entity would
have had to remove it from the folder, perhaps remove staples, copy the document, restaple
it, return it to the file folder, and then return the document to the location where it was kept.7
Operation of the copying machine would entail some expense. The process would have to be
duplicated for each person who wanted a copy of the same document.
[¶49] Understandably, the original Public Records Act provided that the entity could charge
a reasonable copying fee for that effort. Wyo. Stat. § 9-692.4 (1975 Cum. Supp. to 1957
Wyoming Statutes). However, the original legislation, and the amendments that followed,
did not permit the entity to charge a fee for retrieving the information, bringing it to a
location where it could be inspected, and returning it to storage.
[¶50] The process to retrieve the emails in this case can accurately be compared to the
retrieval and transportation process for a paper record. The district chose to store documents
on its email server and on the private email servers used by board members. It has never
denied that these records fall within the scope of the Public Records Act, which defines the
term “public records” to include “office files and memoranda,” which in turn is defined to
include correspondence, which the emails are. Wyo. Stat. Ann. § 16-4-201(a)(vi)(B). In
order to make this information available for inspection, the district had to collect data it
allowed to be stored as it was, transfer it to the same electronic file, and provide a means by
which someone requesting inspection could view it.
[¶51] The majority’s analysis strains the word “copy” when it considers that term to mean
anything similar to what it meant in 1969. Moving the electronic data is less cumbersome
6
The record tells us nothing about the extent to which public records are still kept in paper form, and the
process would be the same as described to the extent they are.
7
An entity might be understandably reluctant to allow a member of the public to disassemble, reassemble,
and refile its paper files to copy them.
17
than it is to collect paper documents for inspection. Electronic documents can be searched
electronically, which paper files cannot, unless of course they are first scanned into an
electronic format and made text searchable. It is ironic that the majority’s construction of the
statutes in question allows a charge for locating and moving data in electronic form, while it
would prohibit such a charge for moving information in paper form, regardless of how
voluminous that paper information may be. As we have observed:
Legislative intent, manifested in the plain language of the
statutes, is the controlling consideration in our interpretation of
them. This intent is the vital part, and the essence of the law. In
keeping with the legislature’s intent, we endeavor to give
statutes a reasonable, practical construction. We do not construe
statutes in a manner producing absurd results. Put another way,
when a statute is as clear as a glass slipper and fits without
strain, courts should not approve an interpretation that requires a
shoehorn.
In re RB, 2013 WY 15, ¶ 17, 294 P.3d 24, 29 (Wyo. 2013) (citations and quotation marks
omitted). Because we have interpreted the purpose of the Public Records Act to permit
access, rather than to prevent it, we should be reluctant to resort to a shoehorn to allow
governmental entities to shift the cost of their statutorily mandated operations to citizens who
seek to learn what the entity is up to.
[¶52] Even if the term “copy” meant the same thing as electronically transferring
information within the system, which it does not to me, that does not mean that it was
necessary to transfer the data to a CD. This may have been more convenient for the district,
but there were other options. It would certainly be impractical for many reasons to allow a
citizen to use an entity’s working computers to inspect electronic documents. However, no
one has suggested a reason that the data sought to be inspected here could not have been
transferred to a location where it could be examined at a public terminal, and it would not
seem to be difficult to set up an inexpensive desktop computer to allow inspection. The
terminal could be set up in such a manner as to limit access to the requested records and to
prevent modification of the custodian’s records. I do not believe this would involve
“copying” as that word has historically been used in the Act, for reasons I have already
explained.8
[¶53] The majority’s decision will encourage governmental entities to keep their electronic
records in disarray, rather than properly organizing them so that they can be inspected. In
this case, much of the work to produce the emails was caused by the board members’ use of
personal email addresses, where official and perhaps sensitive information could have been
8
The newspaper points out that in this day and age, users may not request either electronic or printed
copies of records – they may simply photograph them using a stand-alone digital camera or a smartphone
camera if they only require the information contained in the electronic document. Whether a custodian
could prevent that to recover a copy charge is not an issue in this case.
18
commingled with personal communications.9 It was obviously less difficult for the district
IT staff to search its servers to find official emails that fell within the relevant time period,
and this process could have been simplified by issuing board members official addresses as
the district planned to do at one point in time.
[¶54] As the Ohio Supreme Court observed, “No pleading of too much expense, or too
much time involved, or too much interference with normal duties, can be used by the
respondent to evade the public’s right to inspect and obtain a copy of the public records within
a reasonable time.” State ex rel. Toledo Blade v. Seneca Cty. Bd. of Comm’rs, 899 N.E.2d 961,
971 (Ohio 2008). The Court found that the custodian had “a duty to organize and maintain
[the records] in a manner in which they can be made available for inspection and copying.”
Id. We should not presume that the legislature intended to adopt a statute which would allow
public records custodians to do otherwise, particularly in light of the statute’s express
language.
[¶55] Finally, the majority refers to the provision of a 2014 amendment to the Public
Records Act which instructs the Wyoming Department of Administration and
Information (A&I) to adopt uniform rules for inspection, copies, and production of
records for the use of state agencies. Wyo. Stat. Ann. § 16-4-204(e); 2014 Wyo. Sess.
Laws ch. 109, § 1. This statute has no direct application here, since the school district is
not a state agency.10 The applicable statute would be Wyo. Stat. Ann. § 16-4-204(c),
which provides that “[a]fter July 1, 2003, any fees or charges assessed by a custodian of a
public record shall first be authorized by duly enacted or adopted statute, rule, resolution,
ordinance, executive order or other like authority.”11
[¶56] Both of these provisions just authorize A&I and local governmental entities to make
rules setting the amounts and conditions when fees can properly be charged. This makes
sense – there should be rules to provide for orderly inspection which will not disrupt
government business, the cost and means of copying when copies are requested, etc. The
majority’s conclusion that the statute intended to allow an entity to charge for inspection if
inspection can only be accomplished by making an electronic copy, which I consider to be a
mere transfer of data, finds no support in its plain language. Moreover, no administrative
agency or local governmental entity can adopt regulations which exceed their statutory
authority, and the 2002 amendments described above prohibit a charge for inspection. Qwest
Corp. v. Public Service Comm’n of Wyoming, 2007 WY 97, ¶ 3, 161 P.3d 495, 497 (Wyo.
2007); Pedro/Aspen, Ltd. v. Board of Cnty. Comm’rs for Natrona Cnty., 2004 WY 84, ¶ 13,
94 P.3d 412, 417 (Wyo. 2004).
9
We have no idea whether this occurred or not, because the emails are not of record, as the newspaper
refused to pay for the disc the district made.
10
See Wyo. Stat. Ann. § 1-39-103(a)(ii) and (vi) (LexisNexis 2015), defining the terms “local
government,” “state,” and “state agency.”
11
As already noted, the district did adopt rules as required by this section.
19
[¶57] I would therefore reverse the district court and find that the fee sought to be charged
by the district was improper.
20