Longtime open records advocate Frank Gibson writes about how a Tennessee mayor imposed a fee policy for public records, overlooking his city’s charter which requires such a policy to be adopted as an ordinance with a full board vote in an open meeting.
By Frank Gibson
Public Policy Director, Tennessee Press Association
It has always troubled me that ignorance of the law can be used as a legal defense for not complying with the Tennessee Public Records Act.
That absurdity came back a few weeks ago when The Hendersonville Star News reported on a brouhaha that had been raging for months between Hendersonville city officials and a group of local residents. The issue was whether (and how much) the city could charge to produce copies of public records.
Elisha Hodge, the state open records counsel, had opined that the city could not charge the public for the labor of city employees until the Board of Mayor and Aldermen adopted a written policy by “ordinance.”
Up until July 23, the city had tried to charge for labor under an “administrative” order imposed by the mayor four months earlier.
The back and forth started when the Star News reported in February that the mayor had taken his wife on an expense-paid business trip to Washington, D.C. Some citizens began requesting information on the mayor’s travel and entertainment expenses — as far back as 2004.
The Star News reported the mayor signed a new administrative policy in March, imposing the labor charges but without any public notice and without any prior review by the BOMA.
The new policy became public when citizens began requesting hundreds of pages of records. The group started challenging whether the mayor — under current law — could change the policy to charge for labor on his own. They refused to pay and complained to the Office of Open Records Counsel.
The citizens said they had been getting the “run-around” and argued that the documents they had requested could point to misuse of public funds. The city attorney has said that the city has not denied access to records, but that the issue has been whether the public should pay for the records.
Some city leaders said a handful of citizens are pursuing a political vendetta against the mayor and that all the time city employees have spent preparing records is an unreasonable expense to local taxpayers.
OORC Hodge notified city officials that a 2008 state law required her office to establish a Schedule of Reasonable Charges. That “Schedule” has been posted on the state website for five years. It states:
“If a records custodian determines to charge for copies or duplication of public records, such determination and schedule of charges must be pursuant to a properly adopted rule and evidenced by a written policy authorized by the governmental entity’s governing authority.”
The mayor was obviously not a “governing authority” and the intent of the law was for the local legislative bodies to sign off on such policies — hopefully allowing the public to participate in the conversation.
Next, the BOMA adopted the mayor’s policy by resolution — on a single vote on July 23. That was done so hastily it wasn’t even on the BOMA’s published agenda.
Star News reporter Tena Lee reported that the group requested more records and members were told they owed hundreds of dollars. Citizens continued to argue they shouldn’t pay the fees because the city policy was not legal.
It is absurd enough that the city of Hendersonville officials were not aware of the 2008 change in state law, but the story gets better (or worse, depending on your perspective).
After members of the BOMA adopted the mayor’s records policy by resolution, citizens again called the Office of Open Records Counsel to complain. They had discovered that the public records policy violated the Hendersonville City Charter, which states:
“Fees for copying and certification shall be charged as established by ordinance.”
That is what prompted Hodge, the OORC, to advise city officials: “It is the opinion of this office that in order for the city to charge for copies of public records an ordinance related to such charges must be properly adopted by the BOMA.”
It is anyone’s guess as to why it took a whole 8 months for that little fact to surface.
The upshot of Hodge’s opinion was that access to public records is a major policy issue that deserves more than the “ministerial” treatment afforded by resolution. Ordinances require two separate votes of the BOMA, resolutions only one.
Now back to ignorance as a defense. Since 1957, when the records law went on the books, the only consequence for not complying has been the threat of a lawsuit. The only thing a citizen stood to gain if he won the lawsuit was the remote possibility of getting lawyer and court fees reimbursed.
The citizen would have to prove that the governmental entity “knew” they were not complying with the law and that the alleged act was “willful” before the court could assess “reasonable costs” against the government.
Another provision of the Schedule of Reasonable Charges states: “Application of an adopted schedule of charges shall not be arbitrary. Additionally, excessive fees and other rules shall not be used to hinder access to non-exempt, public records.”
All of this makes one wonder, to paraphrase Tennessee’s former U.S. Senator and senior statesman Howard H. Baker’s question about Richard Nixon in the Watergate hearings: “What did the president know and when did he know it?”
(Originally published October 2013. Frank Gibson is the Tennessee Press Association’s public policy director. Reach him at firstname.lastname@example.org or 615-202-2685.)