An editorial published in the Sunday editions of the three largest newspapers in Tennessee sent a message about public records:
Now is the time to address the inadequate system of charging citizens and media labor fees to review public records.
The editorial points out a recent $1,600 bill paid by The Jackson Sun to track the problems that have put University of Tennessee-Martin at risk of losing accreditation. Part of that bill included $108 per hour for the interim chancellor to review emails before releasing them.
The editorial, penned by Commercial Appeal editor Louis Graham, also lists other charges that newspapers have faced in the course of trying to report a story:
It shouldn’t cost The Tennessean in Nashville more than $50,000 to obtain records detailing how children in state custody have died. Nor The Commercial Appeal $7,000 to find out how much generous agriculture property tax breaks cost the rest of us ($90 million a year).
The fees were reduced after the newspapers engaged in costly or time-consuming fights. Increasingly, though, few media outlets, and precious few citizens, have the financial and legal resources to fight these exorbitant charges.
Too often the bills reflect a common tactic: Those making the request are met with hourly fees for an expensive lawyer or administrator to review records when a clerk could do the work more cheaply. Other times, requesters are charged excessive computer programming fees to produce electronic data that can be easily — and cheaply — reproduced.
The law that opened the door to labor fees was passed in 2008 as part of a package of improvements to the Tennessee Public Records Act. However, most people probably don’t realize that labor fees were never part of the recommendations by the legislative study committee that developed the changes. The study committee, instead, had asked the soon-to-be-created Office of Open Records Counsel and the Advisory Committee on Open Government to further study issues like “fees” and defining “reasonable” in the statute. That study never occurred, and instead, the late state Rep. Ulysses Jones, the long-time Democratic chairman of the House State and Local Government Committee (and a career employee of the City of Memphis Fire Department), inserted language about the “hourly wage of employee(s)” into the recommended statutory language by the committee instructing the Office of Open Records Counsel to develop a fee schedule.
Ironically, in that statute, the first five hours of labor were free, but the schedule eventually developed had only the first hour free, and included some, but few, limits on how a government entity could go about charging labor fees.
The result over the past seven years has been that some government entities have calculated very large bills for copies of public records, often driven by $100-plus per-hour rates for attorneys or high-level employees to review records for potential redaction. In one case last year, a local county government paid a private attorney $250 per hour to handle a public records request.
The editorial argues that last year’s failed attempt to change the law to allow new fees to inspect records revealed how fees for copies have begun to chill transparency in the state:
A proposal in 2015 that additional fees be permitted just for examining records met a loud and angry reaction from the public, and lawmakers retreated on the idea this year. However, lawmakers did pass a bill requiring all local governments to adopt open-records policies by the end of the year, including statements on how fees are charged.
So now is the time for a clear statement on this issue.
Taxpayers should bear the cost of making and keeping public information public as they historically did in Tennessee until the law was changed. This is, after all, the Internet era and public records should be routinely made available on the web.
But if charges are allowed, there must be strict controls to counter abuses. No citizens should have the door slammed on them because they can’t afford to look inside.
Note: The editorial also published in The Daily News Journal in Murfreesboro and The Leaf-Chronicle in Clarksville.