Only 41% allow fee waivers based on amount

The Office of Open Records Counsel in its “Best Practices and Guidelines” advises government entities that if they choose to charge fees, they should consider waivers in certain circumstances. The office also advises that any waiver of fees should be “expressly set forth and permitted in the adopted public records policy.”

Waivers could be based on several factors, such as number of copies requested, the dollar amount for charges, the nature of the record requested and the record’s accessibility, the office advises. 

One of the waiver provisions offered as optional language in the Open Records Counsel’s Model Policy is for fees under a certain amount: “When fees for copies and labor do not exceed $_____, the fees may be waived,” allowing the government entity to fill in the blank with dollar amount under which it won’t collect fees.

The most common logic for a waiver provision for fees under a certain amount is based on the idea that the clerical time and effort spent processing a payment (by cash, check or credit card, for example) at some point costs more than the fee received. It also is a way to lower the cost barriers for citizens getting copies.

Of the 259 policies examined in the TCOG audit, however, the majority (59%) did not allow such fee waivers. Of the 41% that included a provision to waive fees under a certain amount, the median amount listed was $5.

Some government entities were clearly more generous than others — the thresholds ranged from 15 cents to $50.

Wilson County and the city of Sevierville had the most generous fee waivers at $50. Two entities said all records would be “free.”

Others are clearly more strict as a matter of policy about collecting fees. One government entity says it will only waive fees under $10 and only for elected and approved officials of the government (indicating those same elected and approved officials must pay for any copies that cost more than $10.)

Of the entities audited, 67% of the cities allowed some fee waiver based on the amount and 58% of counties did. By contrast, only 4% of school districts included a fee waiver provision based on fee amount.

What fees are charged by government entities?

The most common fees charged by government entities are per-page fees to cover the cost of copies, and labor fees. While the state standard for per-copy fees are 15 cents per black and white page and 50 cents per color page, there are no standards for labor fees.

The Office of Open Records Counsel’s Schedule of Reasonable Charges states that when labor fees are considered: “A records custodian shall utilize the most cost efficient method of producing requested records. Accordingly, a records custodian should strive to utilize current employees at the lowest practicable hourly wage to fulfill public records requests for copies.”

The office defines labor broadly to include the time spent locating, retrieving, reviewing, redacting, and reproducing records. And it says that the hourly wage of an employee, not including benefits, should be used to calculate charges, with the first hour being “free.”

But because some government entities have their lawyers review requests, or higher-paid staff, it is not unusual in Tennessee to hear of labor fees well over $100, even for requests that may have taken only a few hours to compile and redact.

Fee waivers allowing fees to be waived under $5 will do little to address the issue of the cost of public records in these instances.