Now is the time to address runaway labor fees to access public records

An editorial published in the Sunday editions of the three largest newspapers in Tennessee sent a message about public records:

Louis Graham

Louis Graham, editor of The Commercial Appeal

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.

Former state Rep. Ulysses Jones, D-Memphis (now deceased)

Former state Rep. Ulysses Jones, D-Memphis (now deceased)

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.

Read: Editorial: Stop charging ‘us’ for ‘our’ records

Note: The editorial also published in The Daily News Journal in Murfreesboro and The Leaf-Chronicle in Clarksville.

One thought on “Now is the time to address runaway labor fees to access public records

  1. Laws Bouldin

    My tiny little company, tnrealestate.com, just paid Rutherford County $1600 for a set of Assessor Data. The time required to make the file available was about 10 minutes. In this instance available was emailing us an FTP link. In order to justify the expense, the Assessor data is sold as part of a GIS license which allows them to charge almost anything they want due to the poorly written GIS fee legislation passed back in Mr. Snodgrass’s tenure as State Comptroller. My company, like any other I assume, has to pass those costs along to the user. In our case, 95% of the users are searching in the county from which they reside, thus we pass on the cost to the citizenry that has already paid for it. From a company perspective, multiply $1600 by 95 counties, add in the approximately $5000/county for GIS maps and you have our tab that we have to pass on to our customers for “Public Data.” In the end, these archaic policies hurt small business the most. The small guy or gal that needs cost effective marketing and research for anything having to do with real estate i.e. home buyers, sellers, appraisers, lenders, landscaping etc. The likes of Realtor.com and Zillow can afford these prices, but Mr. and Mrs. Tennessee start-up/small business can’t. Having been in the data business over 20 years in Tennessee, I am not dismayed, but not shocked, that we are still having this debate.

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