By Deborah W. Fisher, Executive Director, Tennessee Coalition for Open Government
It was a year ago in February when the Department of Children’s Services announced it would charge a coalition of news organizations $55,484 to make copies of child fatality records.
The sticker shock was a low moment for open government advocates. DCS included 1,800 hours of staff time in its estimate.
But instead of discouraging citizen engagement in their government, the court fight over DCS records and excessive costs should be a signal for citizens and journalists to be proactive and work through their tangles with public officials on local levels when it comes to access to public records.
In December, a news reporter in Middle Tennessee complained of a surprise $27.14 charge to make copies of seven job applications for a city position.
Previously, the reporter had enjoyed a good relationship with city staff, who would fax her public records at no cost when she requested.
She found herself, not unlike many journalists, caught off guard and without enough time to read the law and figure out whether the city was in the right, or she was being harassed for the story she was pursuing. Clearly, though, something had changed at city hall.
Here’s the short answer:
* By law, you cannot be charged to inspect records.
* If you want copies, a governmental entity has the option to charge for both labor and copies, but it must have a written policy that was properly adopted by the entity’s governing authority to do so.
* You should get an itemized estimate of any labor and copy fees before the records are copied.
* The first hour of labor is free. And the entity should use qualified staff with the lowest hourly wage to keep the labor cost down.
* The standard copy cost is 15 cents per page.
And, perhaps this is most important: a governmental entity is not required to charge anything and savvy government officials will consider this.
Tennessee’s law allows local government discretion in their efforts to be as open as possible with their citizens.
Local governments can choose to waive copy or labor fees as part of their fee policy. They can set a threshold for charging citizens fees at all, like state Comptroller Justin Wilson did when he decided any charge less than $25 wasn’t worth the cost of collecting the fee.
Journalists and citizens should find opportunities to discuss the importance of low-cost or no-cost open records with their local public officials.
You can start with the principle that providing access to public records is an essential part of a representative government where citizens have a right to know what their government is doing.
Providing public records should be viewed as a routine responsibility of an open government rather than treated as some add-on premium service.
And certainly government officials should resist misusing their power, counting every way they can charge a fee when they become annoyed at what’s being requested.
Journalists should get the written policy for public records of any government body they cover. And if the government body has not yet adopted a policy, journalists and citizens should weigh in when and if they develop one.
Using a smart phone to make copies
Which brings us to an issue that has been brewing in some corners of Tennessee: The use of smart phones or other devices to make your own copies of records.
On the face of it, this is simple.
What can be cheaper than snapping a picture of a public document with your iPhone? Or better yet, using an app that turns your phone into a miniature scanning machine that provides high-quality text copies. Saves everyone time and money, right?
Some states have addressed it head-on. In December in Arizona, the attorney general made it clear that a citizen could not be charged a fee for using his or her own device for making copies.
In Tennessee, local discretion comes into play.
Office of Open Records Counsel Elisha Hodge says there is nothing in the Tennessee Open Records Act that prohibits self-copying, nor anything that requires a governmental entity to allow it.
Records custodians might raise concerns that letting someone else copy records could risk the record being damaged.
The fear is unfounded, and, at most, easily overcome with a few common sense ground rules.
And common sense really should prevail. In the end, any financial cost of keeping a government transparent is far less than the price we all pay for keeping it closed.
In the DCS case, the state reduced its charges to $34,225. Then the judge ordered no more than 50 cents a page, which the media paid. The state has indicated that it will probably appeal that order.
The state may “win” some additional money. But winning back lost trust is always far more difficult and doesn’t happen inside a courtroom.
Deborah Fisher is executive director of Tennessee Coalition for Open Government, a 10-year-old nonpartisan nonprofit alliance of media, citizens and good government groups. She can be reached at firstname.lastname@example.org or (615) 602-4080. Follow TCOG’s blog at www.tcog.info, on twitter @TnOpenGovt or Facebook.