Our County Clerk just removed an individual who was using a flash camera to take photos of documents. When she asked that he desist, he claimed that under the Freedom of Information Act he could.
I have looked at 5 USC 522 and don't see his justification there. For various reasons, including the distraction of a flash in a small workspace, the clerk is not wanting this to go on. Any thoughts? It seems to me that, as long as she can make the documents available, albeit for a fee, that there is no right to use a camera.
Does the act apply to State Govt. documents? It's been a while since I did research on that issue but I think there was a case that said the federal act did not apply to state governments....only federal entities. I don't have a cite, going from memory. Also, doesn't a flash tend to damage documets over time. I'm sure it would take many years but.....
The open records act gets used by the public all the time to provide access, it seems the county could also use it to provide the sole means of access. i.e. you can look but if you want a copy here is the cost schedule(who ever thought a county might be in the position to use the act offensively.
Do you have the AG's Public Information Handbook?
Page 20 addresses the right to obtain copies. AG Opinion JM-757 is cited. A governmental body may refuse to allow duplication of public records by means of portable copying equipment WHEN IT IS UNREASONABLY DISRUPTIVE OF WORKING CONDITIONS (among other things)
I think your clerk is safe in refusing the use of the flash camera.
As far as I know, the FOIA does not apply. The Texas Public Information Act a/k/a Open Records Act (Govt. Code Ch. 552) is the state version of the FOIA.
Probably the only reliable way to get an answer to your question (assuming the requestor doesn't sue you) is to request an opinion from the A.G. I don't know if an Open Records decision request or a regular opinion request would be the proper vehicle. Maybe tell the requestor to put his request to take photos in writing, and then refer it to the Open Records section?
There is a 1987 A.G. opinion that says a county, under certain circumstances, can refuse to allow a member of the public to make copies of records with his own copying machine, and outlines what those circumstances are. It's JM-757 (1987). The same logic may apply to photos.
I suppose you could also argue that because the Open Meetings law expressly allows the public to photograph govt. meetings (Govt. Code SEc. 551.023), by omitting that provision from the Open Records law, the legislature didn't intend the public to have the right to photo records. That sounds weak to me, though.
My thanks to each of you. You confirmed where I was heading!
There is an AG opinion from several years ago that says the clerk cannot prohibit someone from using their own equipment to copy records and cannot charge them for doing so. The flashbulb issue may make a difference but I don't see that as being that disruptive.
The AG opinion in question is JM-757 (see also DM-030). The AG said while a requestor may use his own equipment, the clerk may deny the use IF it would be unduly disruptive to the staff or public, unsafe (block exits, overload wiring, etc.), or would damage the documents themselves (one the of duties of the court clerk is to preserve the integrity of the documents).
Our county clerk's office is relatively small, especially with four people trying to work in it as well as assorted landsmen and the like. One of the concerns was that the person may not be photographing documents, but work on desks (including juvenile files) and the like.
WHile I am not generally one to court a lawsuit, my response has been that flash photography stands to damage documents, and photography in general is too intrusive to be allowed.
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