Broadcasters association advises Open Records Counsel that blanket ban on photos of public records is unreasonable, inefficient

The Tennessee Association of Broadcasters has added its voice to the growing number of entities who have urged the Office of Open Records Counsel to revise its Model Public Records Policy to eliminate the option of a blanket ban on taking photos of public records.

Doug Pierce

Doug Pierce with King & Ballow

The Office of Open Records Counsel’s model policy includes language that several government entities have adopted into their own policies and practices that would ban someone from taking a photo of a non-exempt public record with their cell phone or camera.

The broadcasters association, along with the League of Women Voters of Tennessee, the Tennessee Press Association and Tennessee Coalition for Open Government, have all written letters outlining for the Office why the option of a blanket ban is seemingly arbitrary, in apparent conflict with the law, and wasteful and inefficient for government and the requestor.

Doug Pierce, counsel for the state broadcasters association, pointed out in the letter to Open Records Counsel Lee Pope that broadcast stations, as federal licensees, are required to serve the public interest and they serve as a “surrogate or proxy for the public to disseminate information on a daily basis the public does not have time to access.”

He pointed out that broadcasters frequently use cameras to photograph public records to illustrate news stories to inform the public. But under the Model Policy, they would have to go through “the wasteful and inefficient practice of requesting a photocopy of the records from the records custodian simply for the purpose of photographing it for wider public dissemination.”

“A blanket ban on the use of cameras to photograph records in all circumstances is not reasonable. These cameras do not in any way harm the public records,” Pierce wrote. “Accordingly, any prohibition against someone taking a photograph of the public record he or she is allowed to inspect is a wasteful and inefficient use of time and money that cannot be rationalized as being reasonable.”

Here is the text of the full letter:

Dear Mr. Pope,

I am writing on behalf of the Tennessee Association of Broadcasters (“TAB”) to request that your office update the Model Public Records Policy (“Model Policy”) to reflect that government entities should allow citizens to photograph public records produced for inspection, or the Model Policy at least not prohibit such photography in all cases.

TAB is a voluntary association of radio and television broadcast stations located in Tennessee. Its purpose includes promoting a high standard of public service among Tennessee broadcast stations and fostering cooperation with governmental agencies in all matters pertaining to national defense and public welfare. Broadcasters, as federal licensees, are statutorily required to serve the public interest. 47 U.S.C. § 5303(f); National Broadcasting Company v. United States, 319 U.S. 190 (1943); McIntyre v. William Penn Broadcasting Company, 151 F. 2d. 597, 599, (3rd Cir.), cert denied, 327 U.S. 779 (1945) (“broadcasting station must operate in the public interest and must be deemed to be ‘trustee’ for the public”).

Likewise, the Tennessee Public Records Act (“PRA”) is designed to serve the public interest by allowing all citizens of Tennessee to know of how their government operates. Broadcasters, as members of the news media, serve as a surrogate or proxy for the public to disseminate information on a daily basis the public does not have time to access.

We understand that chairmen of the General Assembly Joint Government Operations Committee, Senator Mike Bell and Representative Jeremy Faison, have made a similar request to TAB’s request have the Model Policy modified to reflect that state government cannot ban the use of personal equipment to take photographs of other copies of public records in all cases. We agree with Chairman Bell and Faison that prohibiting the use of personal equipment to make copies in all cases is an unreasonable restriction. We respectfully request that the Model Policy be revised to provide more reasonable guidance for not only the state government offices, but all entities subject to the PRA.

To comply with that obligation to inform the public and serve the public interest, broadcasters frequently use cameras to photograph records to illustrate new stories, and thereby inform the public. Under the current Model Policy, someone, such as a broadcaster, who simply wanted to photograph a public record, would have to go through the wasteful and inefficient practice of requesting a photocopy of the records from the records custodian simply for the purpose of photographing it for wider public dissemination. Of course, there is no restrictions on the rights of Tennessee citizens to inspect (without copying) public records during regular business hours. Tenn. Code Ann. § 10-7-503(a)(2)(A). If any member of the public is required to first obtain a copy of the records that it was first entitled to inspect, simply to take a photograph of that record, this would result in the inefficient actions of having the government employee waste time and money to make a photocopy of the record simply to allow the requesting party to photograph the photocopy.

Although the Tennessee Code Annotated § 10-7-506(a) gives records custodians the right to “adopt and enforce reasonable rules” on the making of copies. A blanket ban on the use of cameras to photograph records in all circumstances is not reasonable. These camera do not in any way harm the public records.

Accordingly, any prohibition against someone taking a photograph of the public record he or she is allowed to inspect is a wasteful and inefficient use of time and money that cannot be rationalized as being reasonable. TAB has never received any explanation as to why a blanket prohibition on allowing member of the public to photograph public records is justifiable or reasonable. Section 506 of the PRA also requires that, “In all cases where any person has the right to inspect any public records, such persons shall have the right to take extracts or make copies thereof and to make photographs or photostats of the same while such records are in the possession, custody and control of the lawful custodian . . . . ” This provision implies that the requestor has the right to use his or her own equipment to create images of the records produced for inspection.

Furthermore, any blanket prohibition against allowing citizens to use their personal equipment to make images of public records appears to be at odds with Section 10-7-505(d) which requires the PRA to “be broadly construed so as to give the fullest possible access to public records.” Moreover, your office is obligated to consider the practice in question here in establishing the cost of copies of records. Tennessee Code Annotated §8-4-604(a)(1)(A)(ii)(e) states that the OORC “shall consider . . . when large volume requests are involved, information shall be provided in the most efficient and cost-effective manner, including, but not limited to permitting the requestor to provide copying equipment or an electronic scanner.” It therefore seems that this section is directly contrary to any policy seeking to impose a blanket ban on a citizen using his or her own equipment, including cameras, to take photographs of public records.

Thank you in advance for considering our comments on this matter. We respectfully urge your office to revise the Model Policy as requested herein. Please do not hesitate to call me if I may provide you with any other information concerning this matter.

Sincerely,

Douglas R. Pierce

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