Office of Open Records Counsel finalizes model public records policy

The Office of Open Records Counsel has published a new model public records policy that can be used by government entities in establishing records policies, which are required by law this year.

A new law mandates that all government entities in the state establish a public records policy by July 1, 2017. The policies must include the name of entity’s public records request coordinator and include information about requesting public records and any fees.

Open Records Counsel Ann Butterworth

The model policy developed by the Open Records Counsel, along with updated Best Practices & Guidelines, includes many of the same principles and advice given previously by the office. But the updated guidelines and new model policy could make it easier for government entities to understand what is required under the law and help them avoid adopting policies or practices that are in conflict with the law.

In 2014, Sumner County’s school board was sued over its public records policy, which a judge found to be in violation of the Tennessee Public Records Act. The school board has spent more than $200,000 in legal fees defending its policy and is appealing the judge’s ruling.

The new model policy, posted online on the Office of Open Records Counsel website along with other updated forms and guidelines, includes language that “[n]o provisions of this Policy shall be used to hinder access to open public records.” It also quotes the Tennessee Public Records Act that says policies cannot “impose requirements on those requesting records that are more burdensome than state law.”

The policy covers how entities can charge fees for copies, but also says that government entities do not have to charge fees, and can grant fee waivers. It offers optional language for a government entity to cap fees or waive fees if it is “for the public good.” While this option has always been available for government entities, including it in the model policy could encourage more governing bodies to adopt policies that allow them greater flexibility.

The policy also includes prominently that “[r]ecords custodians shall provide requestors with an itemized estimate of the charges prior to producing copies of records…” which reflects the law but sometimes is overlooked by custodians who either don’t provide estimates in advance or don’t provide itemized estimates.

In an effort to improve communication and provide access to records, the policy also includes language that encourages government entities to reach out to requesters to clarify requests when appropriate, particularly if a request is very large or vague. Better communication on the front end could save time and money for both the government entity and the requester in such situations.

The Best Practices & Guidelines includes some new instructions that are more explicit and stated more strongly than previous guidelines. For example, the office says that government entities should provide records “promptly,” and notes that “[i]t is not considered ‘prompt,’ under the TPRA, to routinely wait seven (7) business days to respond to a record request.” A frequent complaint from citizens is that government entities misunderstand the law’s requirement for a prompt response. (See: Judge says Nashville violated law by not providing public records promptly.)

Another particularly helpful guideline instructs the government entity to “clearly post its public records policy, or a link to the policy, on the homepage of its website” and include the contact information for the public records request coordinator on the homepage as well.

The model policy also states that requests to inspect records may be made orally, in writing or by phone, but cannot be required to be made in writing, which was an issue in the Sumner County Schools lawsuit. While the policy does not expressly require a government entity to provide an email address where records requesters can send requests, it does advise government entities to to use their websites “to efficiently handle record requests.”  It also advises the government entity to include “additional acceptable means for submission of requests.” Still, this portion of the policy fell short of making clear that a government entity cannot deny a request received by email. Some school districts across the state have policies that say they won’t respond to a records request sent by email.

The Office of Open Records Counsel received feedback from members of the Advisory Committee on Open Government in developing the new model policy and guidelines.

Tennessee Coalition for Open Government provided feedback, and some of its suggestions were incorporated into the final documents.

One area that remains undefined is the ability of requesters to use their phones to take pictures of public documents. Often, journalists and others, instead of copying information by hand into their notebook when inspecting public records, prefer to photograph documents for their notes instead. The law allows government entities to “adopt and enforce reasonable rules governing the making of such extracts, copies, photographs or photostats” and some government entities have prohibited photographs of documents without explanation.

The Open Records Counsel, in its policy considerations attached to the model policy, suggests a government entity determine “whether to permit requestors to make copies or duplicates using their own devices, such as a cell phone camera” but does not weigh in on what factors might be considered reasonable justification for banning such photographs.

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