dissenting:
I respectfully dissent from the opinion of the majority because I believe that the trial court acted properly in balancing the convenience of the plaintiff against the burden imposed upon the agency in determining whether the agency was required to furnish the requested information in the form of computer tape rather than computer printout.
The agency maintains the requested information on computer tape. The information can be reproduced in two ways — either by making a copy of the computer tape or by making a computer printout of the information contained on the tape. The plaintiff requested a copy of the tape because the copy could be used directly in the plaintiff’s computer, thereby making the information more accessible in that form. By contrast, it would cost the plaintiff approximately $900 to transfer the information from the computer printout into the plaintiff’s computer.
, The agency maintains that it may choose the format, regardless of any inconvenience to the plaintiff, as long as the information is in a readily accessible form. It cites Dismukes v. Department of the Interior (D.C. Cir. 1984), 603 F. Supp. 760, as support for this contention. The Dismukes case does state that in order to comply with the Freedom of Information Act (FOIA), the agency need only provide responsive, nonexempt information in a reasonably accessible form. However, a close reading of the case reveals that the court did in fact consider the cost differential between microfiche and computer tape in determining whether the agency was erecting unreasonable barriers to the plaintiff’s access to the information. The court found the differential minimal and concluded that the agency was not erecting an unreasonable barrier to the plaintiff’s access.
The plaintiff has cited two cases from other jurisdictions and an Illinois Attorney General opinion which support its position. In Ortiz v. Jaramillo (1971), 82 N.M. 445, 483 P.2d 500, the court held that the plaintiff had a right to copy a magnetic tape containing voter registration affidavits rather than having to inspect the individual affidavits. In so concluding, the court stated that “[w]e are unable to understand why the right to inspect public records should not carry with it the benefits arising from improved methods and techniques of recording and utilizing the information contained in these records, so long as proper safeguards are exercised as to their use, inspection and safety.” (Jaramillo, 82 N.M. at 446, 483 P.2d at 501.) In Menge v. City of Manchester (1973), 113 N.H. 533, 311 A.2d 116, the court held that the plaintiff was entitled to a copy of computer tapes of certain real estate assessments rather than having to gather the information directly from the field cards. The court stated that “[t]he ease and minimal cost of the tape reproduction as compared to the expense and labor involved in abstracting the information from the field cards are a common sense argument in favor of the former.” (Menge, 113 N.H. at 538, 311 A.2d at 119.) In Attorney General opinion No. S — 1323, dealing with computer tapes containing voter registration records, the Attorney General stated that “[w]hen the county clerk keeps the voter registration records on computer tapes, it makes no sense and accomplishes no legitimate purpose to force individuals and organizations to copy the information from the registration cards rather than from the tape. *** Therefore, as a general rule, interested individuals and organizations may copy computer tapes containing voter registration records.” 1977 Ill. Att’y Gen. Op. 219, 221-22 (No. S — 1323).
The majority attempts to distinguish these authorities on the basis that the format chosen by the agency in each of those cases was “clearly” unreasonable because it imposed a great inconvenience upon the party requesting the information. I believe that a determination as to what constitutes reasonable access should involve a consideration of all of the factors present in the case, including the factor of whether the agency would be burdened in any manner by granting the plaintiff’s request as to format.
In the case at bar, the agency advanced two reasons for furnishing the information in the form of a computer printout rather than a copy of the computer tape. First, it claimed that a computer printout would better ensure accuracy. However, at a hearing on the plaintiff’s motion for summary judgment, it was established that the computer printout would be no more accurate than a copy of the tape from which the printout was produced. Second, the agency maintained that a computer printout would be more accessible to the general public. However, no explanation was given as to why the information could not be released in different formats to different requesters. Finding that the agency had no reason whatsoever to choose one format over the other, the court determined that the agency’s choice of format was entirely arbitrary. Balancing the agency’s complete lack of interest in choosing one format over the other against the considerable cost differential faced by the plaintiff, the court determined that the plaintiff was entitled to a copy of the computer tape. I believe that the court’s decision was compatible with the purpose of the Freedom of Information Act to ensure full and complete access to public records.