Who are you? Government entities crack down on ID to access public records

The overwhelming majority of government entities in TCOG’s public records policy audit —  84% —  state that a requestor must provide identification proving state residency — some specify a Tennessee driver’s license — when making a public records request.

This condition of ID for inspecting or getting copies of public records is perhaps the most significant development in the records request process in the past few years in Tennessee and matches a rise in anecdotal complaints TCOG has received from requestors. It’s an example of a “locked-down” culture in some government entities where if you don’t prove who you are, you can’t see a public record that the public is supposed to be able to see.

The requirement can be used to unduly delay access to records, particularly for routine records requests and when there is no reasonable doubt of a person’s residency.

For example, some requesters have reported making a request and getting a written response days later denying the request because a driver’s license was not provided. 

Others complain that it should be obvious they are residents when they are using local phone numbers, are employed by local news organizations or other local companies, or have made requests before to the government entity.

Still others question why identification is even needed for access to public records, especially routine records such as meeting minutes and reports.

In cases where a resident calls to request public records, some struggle with creating a copy of their ID that can be sent by email or mail, or are fearful of transmitting a document with their driver’s license number on it.

What the law says

The law allows government entities to require a government-issued photo ID, but does not require it:

“(vi)  A governmental entity may require any person making a request to view or make a copy of a public record to present a government-issued photo identification, if the person possesses photo identification, that includes the person’s address. If a person does not possess photo identification, the governmental entity may require other forms of identification acceptable to the governmental entity.” [T.C.A. § 10-7-503(a)(7)(A)(vi)]

Only 6% of the public records policies audited take a more reasonable position, saying identification may be required as opposed to making it a condition in all instances. Such a “may require” indicates that the custodian may require identification in some instances, but may not require it in other instances and gives more leeway to the government official on the front lines to use common sense.

Only 2% of the governing entities audited stated in their policies that they would not require identification as a condition for accessing public records at all; 6% of the policies make no mention of identification requirements.

One public records policy examined requires photo identification plus a “valid unexpired Tennessee voter registration card with a street address.”

Questions about rigid ID requirements

More investigation would be needed to determine the logic behind the vast majority of policies now requiring identification as a condition of inspecting or getting copies of records. This audit examined policies, but did not explore the extent to which the government entities, in practice, are following their policies and requiring identification in every instance.

The push to require driver’s license identification across the board can reasonably be linked to state law that allows government entities in Tennessee to refuse to provide non-residents access to their public records. While government entities often provide records to non-residents in a variety of contexts, some have stopped fulfilling records requests to people who do not live in Tennessee.

However, the consequences of a policy requiring identification in all instances likely creates unnecessary steps that causes delays in accessing records in routine situations, and requires more paperwork even for the simplest of requests.

Some questions about actual practices need further study. For example:

  • Do government entities require identification each time a request is made, even on subsequent requests by the same requester?
  • Are government entities requiring photo ID even when it is reasonable to believe the person is a local or state resident? For example, such as when the requestor states they are a resident, has a local phone number, or works for a local company or news organization?
  • How many government entities are requiring identification for routine public records requests, such as minutes of public meetings?
  • How soon after a request is received without an ID does a government entity let the requestor know ID is required?
  • Are driver’s licenses collected, maintained and tracked as a record of who made requests?
  • What if the person does not have a government-issued photo ID, such as a driver’s license?
  • What if the person lives in a border state yet works in Tennessee?

TCOG has received complaints from requestors about these issues. For example:

  • A county commissioner in Blount County has complained about an insistence for identification when she requested minutes from a state board’s public meeting, even though she had requested and received public records from the same state agency before.
  • Journalists who work for identifiable news agencies in Tennessee have complained they are asked to provide identification despite stating who they work for and having local phone numbers and email addresses identified with their employer. A journalist who lived across the border in Georgia and worked in Chattanooga, Tennessee was denied access to public records.
  • One requestor shared that he made a records request only to get a response days later that the request was denied because he didn’t provide identification. After sending in identification, the government entity told him there were no records responsive to the request.

Some have complained that the government entity keeps a copy of their identification with the request, resulting in a tracking mechanism of who is making requests and for what.

Why the new requirement is in policies

The inclusion of a photo identification requirement is not entirely unexpected.

The Office of Open Records Counsel’s Model Public Records Policy, developed as a guide for entities in establishing policies, instructs government entities to determine “whether to require government-issued photo identification as a prerequisite to providing access to public records…”

Likewise, the Open Records Counsel’s model policy includes adoptable “either-or” language that instructs entities to either require or not require proof of Tennessee citizenship with a valid Tennessee driver’s license.

In addition, a “Public Records Request Response Form” updated by the Office of Open Records Counsel in 2017 added lack of proof of Tennessee citizenship as a reason for denying access to records.