Resource: The state law that gives citizens the right to make photographs of public records

I often get questions from citizens about whether a government entity can prohibit them from taking a picture of a public record. Often the person just wants to use their cell phone instead of copying down into their notebook, word for word, what is in the government document.

Sometimes the law gets ignored or flouted.

So I’ve copied and pasted the law here about making photographs of public records.

You may need to print it out and give it to the custodian to help educate them. Remember, the law trumps a local policy or practice.

T.C.A. 10-7-506

(a) In all cases where any person has the right to inspect any such public records, such person shall have the right to take extracts or make copies thereof, and to make photographs or photostats of the same while such records are in the possession, custody and control of the lawful custodian thereof or such custodian’s authorized deputy; provided, that the lawful custodian of such records shall have the right to adopt and enforce reasonable rules governing the making of such extracts, copies, photographs or photostats.

Now, broken down and reading closely:

1 – Citizens are given the right to “make photographs” of public records.

2 – You can’t make photographs of all government records. The law says you can make photographs of public records only “in all cases” where the person has the right to inspect the records. So if you do not have the right to inspect the record, you don’t have the right to take a photograph. For example, you would not have the right to take a photograph of a record that is exempt from the public records act, or of information in a record that is exempt because you would not be allowed to view this either. A common example would be a record that contains a person’s social security number. You are not allowed to view the social security number, and not allowed to take a picture of it.

3 – You can only “make photographs” of the record “while such records are in the possession, custody and control of the lawful custodian thereof or such custodian’s authorized deputy”. In other words, you can’t take the records home, set up a studio and take pictures unless that custodian wants to come with you. Somehow, I don’t this will be a problem as most citizens are taking pictures with their cell phones to save time and have no interest in removing the records from the government office.

4 – The custodian has the “right to adopt and enforce reasonable rules governing the making of such extracts, copies, photographs or photostats.” The law gives the custodian the right to make rules. Some government entities (including an agency in the Comptroller’s Office – the Office of Open Records Counsel) have said that gives the custodian discretion on whether or not to allow photos of public records.  What the law says is that the custodian can adopt “reasonable rules.” It does not say a custodian can wholesale take away the citizen’s right granted in the law that allows the citizen to make photographs in the first place. If a government entity says you can’t take a photo, ask to see the “reasonable rules.”  A rule might be, “You can’t use flash photography on historical, archived, fragile documents if the flash would damage the document.” If the rule is simply a blanket ban, that’s not a “reasonable rule governing the making of …. photographs.” That is a ban on making photographs.

See the difference? One governs how you do it, one bans.

Read more about this issue, and how it has become an issue, here:

TCOG urges Office of Open Records Counsel to update guidance on taking photos of public records

State agencies urged by committee chair to allow photos of public records

Tennessee government offices deny citizens right to take photographs

5 things to watch in public records policies

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