The fastest way to shut down access to government records is to charge fees people can’t afford to pay.
Another way is to simply ignore or delay responding to citizens or media who make requests under the Tennessee Public Records Act.
Yet another, which takes more effort, is to actively confuse or frustrate a citizen or journalist with byzantine policies and practices to make them go away.
All can be powerfully effective. And, unfortunately, all take place in Tennessee.
The Tennessee Coalition for Open Government received nearly 200 calls to its hotline last year from journalists and citizens who faced obstacles in getting public documents from their local government or suspected their local governing bodies were not holding meetings in compliance with the Tennessee Open Meetings Act.
Since TCOG’s founding, it has logged more than 1,200 such phone calls.
This year, state lawmakers are working on several bills that would make changes to the Tennessee Public Records Act.
Fees for public records
The one seeking the most fundamental change would allow all government agencies in Tennessee to charge per-hour labor fees for the time spent retrieving, compiling and copying documents for the public to see.
The bill is among the top legislative priorities of the Tennessee School Boards Association who say some of its members are getting large public records requests that are costing too much staff time to fulfill.
For example, requests to see how local officials are spending money have been frequent in Sumner County. The Blount County school board chair noted the “25 to 30 hours” its fiscal administrator spent responding to a county commissioner’s request for financial information.
The school board association wants to “solve” these requests by allowing government to charge hourly fees.
The end result is a sort of “poll tax” for public records. If you can afford to pay, you get to see public records; if you can’t, you don’t.
But the problem is not the requests, or the desire of citizens, journalists and public officials for information about how government is operating.
And the solution is not locking down the ability of citizens to get such information by charging fees they can’t afford.
Reinvent Albany, a nonprofit organization in New York that promotes open, accountable government, reviewed logs of public records requests to an environmental state agency to better understand which records were most frequently requested. When it found most of the requests were in one category, it recommended proactively making those available on a website.
If you can find out what requests are being made, you can invest in the right processes that would make that information more easily available, saving time and money in the long run. The federal Freedom of Information Act Advisory Committee picked up on their work and is looking at ways to adopt those principles.
Most local governments and state agencies in Tennessee don’t track public records requests and, as such, are lacking data and understanding of issues in any real depth that could inform improvement. Nothing has been done statewide since an independent TCOG audit in each of the state’s 95 counties checking compliance with the Public Records Act in 2004.
The Office of Open Records Counsel in Tennessee offers Best Practices Guidelines on its website. But how widely are these followed, and should more be added?
These paths offer an alternative to simply holding public records hostage and negotiating over the size of the ransom note.
Right now, the ransom note to be paid by citizens is estimated to be about $1.7 million, based on numbers for a similar bill in 2011.
But would that new influx of money to the government help? Or just fund more of the same?
Last year, the city of Chattanooga had to pay $71,343 to a citizen to reimburse her legal fees after a court found city officials knowingly and willfully violated the open records act in how they responded to her request. The Rutherford County Board of Education was ordered to pay $31,000 to a citizen for a similar reason. Chattanooga’s Industrial Development Board also violated the Open Meetings Act and got hit with legal fees. That’s in addition to what these local governments spent in taxpayer dollars on their own lawyers defending inadequate and anti-transparent practices at the local government level.
This is what’s wasteful.
Sumner County Judge Dee David Gay called it “silly” after he took a look at how Sumner County Schools responded to a citizen’s request to see its public records policy.
The school district refused to respond because they received the request by email.
Gay called them on it in his courtroom during the resulting lawsuit: “Why didn’t you just say, the link (to the policy) is such and such (on our website) and you can go right to it…That doesn’t make much sense to me… If you had done it, we wouldn’t be here.”
The games played, the ransom notes, the thousands of taxpayer money spent fighting against transparency — they don’t make much sense to citizens either. It’s a lot of money down a rabbit hole, and at some point everybody starts to wonder how they got there.
Why not invest instead in what we all really want: an open government and a democracy where information flows freely. That means starting a different conversation.
Deborah Fisher is executive director of Tennessee Coalition for Open Government, a nonprofit organization whose mission is to protect and improve transparency in government.