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Though elected officials gathered earlier this month to select a designee who will take charge of public records requests, there was a distinct lack of volunteers. “Nobody wants to do that,” said Commissioner Jeanne Whalen.

The reluctance comes from what gathered officials described as a new law that still has many unanswered questions. Enrolled Act 72, passed by the legislature earlier this year, makes changes to how government entities must handle public records requests.

Among other changes, the act requires each governmental entity to designate a “public records person” to whom all applications should be made. It creates a state ombudsman to receive complaints for violations of the act and confirms that a person in violation of the act could be liable for a penalty up to $750.

Whalen explained the new rules were created in response to “fishing” from online companies, who ask for huge amounts of data that would take a long time for a department to complete. On that basis, it’s not the first time the county has considered the problem.

“We talked about it a year ago and started a plan and then we knew the legislature was going to be doing stuff and we kind of dropped it,” she said.

With the act coming into effect on July 1, the question of appointing a designee must be settled within the next couple of months. However, several county officials have expressed concern that the new law raises questions that have yet to be answered.

County Attorney Joe Baron pointed out that the county commissioners do not have the right to appoint a designee from among the other elected county officials against their will.

“Where you as a board can’t essentially create duties for the other elected officials, you couldn’t assign that to another elected official unless that other elected official agreed to do that,” said Baron.

Baron outlined some of the other issues he can see with the new law. For example, he questioned the level of knowledge the designee must have about other departments.

“Whoever does this from the designee point of view has got to understand the system and they’ve got to understand: if here is a records request from someone, then whose record is this?” he said.

Additionally, the custodians of records have a certain amount of discretion over fulfilling public records requests, Baron said. Statute says requests “may” be denied for certain reasons and “shall” be denied for others.

Personal information is often protected, he said, and a department head may need to restrict what allowable data is given out because it could be enough for the requester to conclude that personal data for themselves. If, for example, Weed & Pest gives out the address at which a certain chemical is used, the person who requested that record could figure out which landowner was the beneficiary.

“It’s a question of whether this particular information falls within that [restricted] category or not,” he said. “It’s not black and white as people may think.”

The decision as to how the statutes should be applied for an individual records request should be made by the custodian of that record, Baron said.

A second issue, as brought up by County Clerk Linda Fritz, is the liability faced by the designee.

“The central person disseminates it out, and then it’s up to that department to turn over the information requested if it’s allowed,” said Fritz.

However, the designee has no control over whether the department fulfills the request, she said. Would the fine associated with failure to complete a public records request fall on the shoulders of the designee, she asked.

Baron agreed that there is a question mark over whether the person who produces the records or the designee is liable for the fine.

Whalen asked if it would remove the designee from “the hot seat” if they responded to the requester to inform them that their request had been passed to the appropriate person.

“I think that’s something we need to look at in our rules,” said Baron, noting that an additional issue is what happens if the designee does not fulfill that part of the transaction properly; for example, if they send the request to the wrong department.

Meanwhile, said Commissioner Kelly Dennis, appointing a designee does not actually change the process of preparing the records request.

“It looks like each department is going to have some input if the records from a certain department are requested. If you have a central person who is supposed to handle it, you’re still going to have to work with that department,” he said.

The commission must figure out if the designee is simply a point of contact who forwards requests to the appropriate place, said Baron. However, even then, things aren’t as simple as they seem because not every request is for a single, easily located document.

A request that is very general, such as one that asks for “all examples of” a certain type of decision or event within the county, can require significant work to complete. However, Baron said, it’s often the case that the person is looking for something specific within that data, and the office in question can work with them to find that exact piece of information.

Meanwhile, most offices, when a fairly specific request is received, can find and hand over the document, Baron said, but that’s not always the case. One was recently received that involved information both from the office it was made to and elsewhere, he said.

“Usually, the best thing to happen when you receive a public records request is for the designee, or whoever receives that request, to call the person up and talk to them and find out what are [they] really looking for,” he said.

“Whoever is in this designee position…probably ought to be contacting the people and asking what do they want.”

Baron also pointed out that some offices have set their own rules as to whether they charge for public records requests and under what circumstances a fee is instituted.

“My concern is that some of this may be used by folks to circumvent existing public records accesses and fees,” Baron said.

At Baron’s suggestion, elected officials will create a proposal for rules pertaining to public records requests at the next department head meeting to be presented to the commissioners.