A top-to-bottom review presented to the mayor of Memphis last week charts a new approach to handling public records requests in Tennessee and takes direct aim at improving the underlying culture of openness.
Among the 23 recommendations, it suggests a “fresh start” by re-assigning current public records custodians “to prevent adoption of incorrect methods or bad habits that have formed as part of the culture of the division or the department in which they work.”
It talks about a “customer-friendly attitude,” suggests appointing a public records ombudsman to resolve disputes, and recommends a training program that would include a mix of city officials, media representatives and citizens “so each can gain a greater understanding of the issues faced by all sides.”
At one point, the report delves into the question of charging per-hour labor fees, the subject of debate of a proposed bill in the most recent legislative session.
“Don’t charge for labor costs,” the report recommends.
“More fundamentally, maintaining an open and transparent government comes with a cost and labor associated is just the price of doing business. Equally compelling is that taxpayers have essentially already paid for the labor through their property and sales taxes that fund the salaries of City government employees.
“The fact that some use the services of public records staff more frequently than others is basically no different than one taxpayer who uses Poplar Avenue daily and another who never uses that route. Both must pay for the maintenance of this important City thoroughfare.”
Mayor A C Wharton, Jr. requested the report, saying he wanted a “comprehensive review of the existing process in order to insure that we are not just meeting the letter of the law, but that we have a process that fulfills the full intent of my executive order,” referring to a 2009 order that established standards for transparency in city government.
“He did precisely what I asked him to do, to give a fair and unbiased assessment of the performance,” Wharton told the Commercial Appeal. “There are many things he suggests that we will set out to implement as soon as possible…He gave me the guidance I need to go forward.”
The report, written by former county commissioner Mike Carpenter, also address very practical considerations, such as how to find technology that more efficiently redacts email, and how to educate and communicate with requesters so that the response to each request is most efficient.
It suggests creating a system that would “tier” public documents so that common documents that were not subject to confidentiality laws could be released without going through the current multiple-step process that routes all requests to the City Attorney’s office for approval.
“This process adds to the inordinate amount of time the City Attorney’s employees must spend reviewing records to ensure that confidentiality is not breached. With some requests, a complete review by the City Attorney seems unnecessary…”
It also offers a practical way to deal with large requests, such as for emails, releasing the information in chunks to the requester. “This allows the requester to review the emails on a ‘rolling’ basis rather than combing through thousands of documents at one time. Additionally, by adopting this model, the opportunity to reduce workload may be possible. A requestor may find what s/he is looking for in fewer documents than requested allowing staff to end the job without reviewing all the documents.”
Carpenter, who is now executive director of the Plough Foundation, interviewed 28 people as part of the study, including several of the city’s attorneys and other city staff, members of the local media and a private citizen who is regular requester of public records.
“It is in fact my belief that the intent of the Executive Order has not been met and at times the law may have been inadvertently violated. The deficiencies identified through numerous interviews of internal and external parties stem from inefficient processes, a lack of understanding of the State of Tennessee’s Public Records Act by both employees and members of the public and a growing distrust between the public records staff at various levels of City government and the local media,” Carpenter wrote.
The report advises creating an entirely different “comprehensive, customer-focused” training program that Carpenter suggested could become a statewide model for local governments.
“While trainings have been conducted and are conducted by various entities across the state, these trainings typically focus on what the Tennessee Public Records Act explicitly allows and prohibits,” Carpenter wrote. “Many in City government and the media understand these basics. In a customer service context, employees fail to realize what they can do and media fails to realize what the employees can’t or shouldn’t do.”
Calling for a joint curriculum developed by the city and media representatives, Carpenter suggests delivering the training to a mixed audience that included citizens, reporters and employees so they could understand the issues better.
A separate section deals with city police records, which Carpenter notes is of some debate and the subject of upcoming arguments before the Tennessee Supreme Court.
Regardless of what the law requires police to release, the report says Memphis should release all basic police incident reports within 48 hours, and suggests, ideally, these reports would be put online. It also suggests that all internal affairs investigations into potential police wrongdoing be made fully public to instill public trust.
“Unless, ultimately charged with an administrative or criminal violation, a cloud hangs over IA investigations when details are not made public. It breeds distrust and doubt regarding whether or not a cover up or conspiracy exists. While it may benefit the accused officer in the short term to be shielded from media scrutiny, the officer and the department suffer irreparable damage to their reputations over the long term. Additionally, officers are essentially public officials and higher level of scrutiny and diminished level of privacy comes with the job.”
Other recommendations include:
- Hire an open records ombudsman who is skilled in negotiation and conflict resolution but who is not a lawyer to “keep the focus on the spirit of the law…rather than the temptation to utilize the letter of the law to delay or decline to fill (public records requests)”.
- Create an Open Records Oversight Committee, made up city staff, elected officials, media and citizens.
- Create a separate steering committee including media and citizens to develop a coherent policy of release of Body Cam footage.
- Launch a dedicated public records data portal.
- Upgrade public records technology.
- Apply for support from the Bloomberg Philanthropies and Sunlight Foundation initiative What Works Cities.
- Adopt the Sunlight Foundation’s Open Data Policy Guidelines.
Carpenter also recommended that the mayor issue a new executive order reflecting updates to the public records policy, and provide it via email or mail to all city employees, including “consequences for failure to abide by the order and serve the public in a customer-focused manner in regard to public records.”
And finally, he asked that City Council pass an ordinance adopting the recommendations.
Carpenter noted that all participants he interviewed (which included TCOG’s executive director Deborah Fisher) will likely not agree on all recommendations, but “I think it is safe to say that each involved has a genuine desire to ‘get it right’ and understands that the issue is complex and filled with potential areas of disagreement.”
Read the full report: Review of Public Records and Transparency in City Government.