Another type of fee waiver included in the “Model Public Records Policy” is a discretionary waiver under which a government official could waive fees when the records are considered in the public interest or for the public good.
A discretionary waiver provides the most latitude for public officials to provide public records freely in situations where the public interest in clear, such as when a group of citizens is researching an issue of public importance, or for journalists who are reporting on public affairs.
The Office of Open Records Counsel provided optional language in its model policy for waivers based on “public good.” However, only 33% of the government entities examined chose to include a discretionary “public good” or public interest fee waiver in their policy. The majority of the policies examined, 66%, chose not to include it.
Cities were more likely to include a “public good” fee waiver provision
Like the fee waiver based on fee amount, a larger percentage of cities, 59%, included the discretionary “public good” waiver in their policy than did counties, 41%.
Very few school districts, only 3%, included a “public good” fee waiver provision.
By far, the most common “public good” waiver matched the suggested language in the Office of Open Records Counsel’s Model Policy.
Requests for waivers for fees above $_____ must be presented to _______________, who is authorized to determine if such waiver is in the best interest of [Name of Governmental Entity] and for the public good.
Most entities who adopted this language included a name or title of a government official, such as a mayor, records custodian or public records request coordinator who dealt directly with records requestors.
More exploration would be need to determine why this discretionary fee waiver provision overall was less likely to be adopted by governing bodies.
How can public interest fee waivers help?
A public interest fee waiver is probably most important when a government entity spends more than one hour compiling records and the request is not “routine.”
The Office of Open Records Counsel’s Schedule of Reasonable Charges states that when labor fees are considered, a records custodian should utilize the most cost efficient method of producing the records.
But there are no limits on the per-hour cost. And government entities reserve the right to have some of its top-paid employees review requests, often for purposes of redaction. For example, a school superintendent might want to review records prior to release of records, or a county attorney might handle redactions. In some counties, an outside law firm is used for reviewing records requested under the public records law, so their rates are applied in labor calculations.
Because of these reasons, it is not unusual in Tennessee to hear of labor fees well over $100, even for a requests that may have taken only a few hours to compile and redact.
When labor fees are high — such as more than $100 or ranging into the thousands of dollars — they act as a barrier on how often local journalists, groups of citizens or other non-commercial requestors can get copies, even when those records are clearly being requested for the public interest.