Three public hearings will be held around the state in September to gather opinions and input about a legislative proposal to allow local and state government agencies to charge fees to citizens to inspect public records.
Currently, the Tennessee Public Records Act says that citizens must be allowed to view public records for free, but citizens can be charged if they request copies of those records. In the case of copies, citizens by law can be charged both the actual cost of the copy and a per-hour labor fee for the time it takes to compile the records after the first hour.
Open Records Counsel Ann Butterworth outlined her draft questions for the hearings, as well as two surveys, at a meeting on Monday with the Advisory Committee on Open Government. One of the surveys would be sent to citizens and media, and the other to government officials.
Butterworth said she hoped to gather information in the surveys that would allow her to make a report and recommendation to the Legislature on a bill to allow new public records fees, which had been brought by the Tennessee Association of School Boards and carried by state Sen. Jim Tracy (R-Shelbyville) and state Rep. Steve McDaniel (R-Parkers Crossroads).
The Advisory Committee on Open Government (ACOG) is a 14-member group appointed by the Comptroller and made up of representatives from local government associations and representatives from media and citizen-based groups. Three additional people serve as ex-officio members, including Deputy Attorney General Janet Kleinfelter, state Sen. Ken Yager (R-Harriman) and state Rep. Bob Ramsey (R-Maryville).
Butterworth told the group that the hearings will be in Nashville, Jackson and Knoxville.
Lucian Pera, who is TCOG’s representative on ACOG, requested that, because of many issues that have occurred in Memphis over public records, the Open Records Counsel hold a public hearing there. Many Memphis citizens might find it difficult to drive to Jackson, he said. Another noted that Chattanooga was also missing from the list. Butterworth said she chose a location in each of the three grand divisions of Tennessee. Ramsey suggested the hearings be in the evening.
The committee also questioned the agenda for the hearings, as well as many of the questions on the proposed surveys — whether there were too many and whether they were going too far into areas of the law not in question.
For example, one item on the agenda for the public hearings asked “Should the TPRA distinguish between public records intended for the public (minutes, annual reports) and records internal to operations.” Another asked, “Should the TPRA distinguish based on the requestor’s relationship to the governmental entity (whether a taxpayer/customer/beneficiary relationship) or on the requestor’s intended use of the records requested?”
“The questions clearly seemed to me designed to drive an answer,” Pera said. “They are certainly not open-ended….The notion that we are going to put that on the agenda as the agenda suggests to me that the Legislature is considering distinguishing between the rights of citizens on this basis, which I find astonishing.”
Kleinfelter agreed and suggested just two of the six items on the agenda appeared relevant to the idea of new charges for inspection. She said she had seen too much litigation in other states where public records laws are based on the information requested or the purpose of the information, and disputes arose trying to determine if a public records request was in the “public interest.”
Butterworth explained her choices saying that the issue came up of whether waivers for inspection fees would be appropriate if a request was coming from the media. She also said that some records are prepared to be outward-facing and others are not.
“If we are looking to change the status quo of whether or not there should be a charge for inspection, should it be treated purely in cookie-cutter fashion? Inspection of any public records? Charging for it? As was referenced, the minutes of the meeting?” she asked.
Robb Harvey, who represents the Tennessee Association of Broadcasters, noted that some of the questions could be helpful, but took issue with the way they were phrased. “From my read of this questionnaire, Ann, and I don’t mean this disparagingly, it has a real anti-transparency tone from the get-go.”
Butterworth said she apologized if “it had one slant or the other” and said she was trying to be neutral. “Part of my role as Open Records Counsel when I hear from citizens who have made requests and then I contact and communicate with custodians, they are very different viewpoints. … A lot of it was getting at information I wanted to help people understand their responsibilities under the law or citizens being able to enforce their rights under the law. And the issue I’m finding is that most custodians do not have wonderful record-keeping practices and oftentimes, trying to collect the records together, it’s not that they don’t want to, they don’t necessarily have a way…”
Blake Farmer, who represented the Society of Professional Journalists in Tennessee, said the questionnaire appeared to get into “every corner of open records.”
“I worry that we’re opening up a Pandora’s box whereas we could be really focused,” he said. “I wonder if there would be value in starting off really simply. How many records requests have you had where you have ended up having to produce over 100 documents?”
The representative from the school board association on the ACOG, Don Long, said he thought the survey should be shortened, but he wanted it to gather specific information from local governments about any large requests they are receiving. He said the school board association had a complaint from a school system that was receiving large requests to inspect public documents that took a great deal of time to put together, yet they weren’t allowed to charge the citizen.
“While this survey won’t be scientific by any stretch of the imagination, it would at least provide us some talking points to go from,” said Long.
Long was the chairman of the Sumner County School Board Chairman before losing re-election in 2014. He was also the city of Hendersonville’s mayoral assistant and director of economic development and remains in that position. His county has been a hotbed of argument and tension around access to public records. In late 2013, it came to light that the city of Hendersonville had been charging for copies of public records without a properly adopted policy and it had received large records requests related to spending receipts. Also, the Sumner County School Board is fighting a lawsuit after it refused last year to let a citizen see the school district’s public records policy because the request came via email.
Most people on the Advisory Committee also spoke against the length of the survey, suggesting it be narrowed and written in a way to gather verifiable information and not just anecdotes.
David Moore, who represented the Tennessee Association of Police Chiefs, agreed on a tighter focus, but said he would be remiss if he did not mention a looming public records issue that is increasingly important to law enforcement around the state — and that is how to treat video from police body cameras.
Questions were also raised about the purpose of the study and what the lawmakers wanted from it.
Dick Williams, a longtime representative for Common Cause in Tennessee, asked about the draft amendment to the fees to inspect bill, which instead of calling for new fees outright, called for recommendations on how to reduce the cost to government of fulfilling voluminous requests. It also called for recommendations on how to better enforce the public records act.
Tracy had said during the session that he wanted legislation that dealt with the “bad actors” on both sides.
Before taking his bill off notice, Tracy said he wanted the Open Records Counsel, along with ACOG, to study the amendment.
Butterworth said that Tracy had not “technically forwarded the amendment to us,” and dismissed the idea of considering it.
Later, Pera read a transcript from Tracy in a Senate State and Local Government Committee meeting in which he told the committee: “And what we’ve decided to do: the Office of Open Records Counsel has agreed to hold public hearings in conjunction with the Advisory Committee on Open Government to discuss these issues over the summer. The Office of Open Records Counsel will report its recommendations no later than January 15, 2016. And I would like to ask them to study the amendment. We have an amendment that has been drawn up and I will get them a copy of that amendment to look at.”
While much of the discussion during the meeting revolved around the hearing agenda and survey questions, at one point Rick Hollow, who represents the Tennessee Press Association on the advisory committee, reminded the group of the importance of access to records.
“It’s been alluded to here, and I think everybody on this group would say we sign on to the idea that a citizen has a right to know. How in the world do you have an informed citizenry if they don’t know what their government is doing?
“But we all know that there are many mechanisms that can be used to suppress participation. Whether it is intimidation. Or whether it is economic. Or whether it’s just access, the physical barriers to access. Those are just tiny examples of ways that can be used to discourage citizen access.
“The issue isn’t so much the reporter for the Commercial Appeal. Or the reporter for The Tennessean. They are going to have their goals pretty well in mind. And they are going to know how to pursue them because they have been carefully schooled on that process.
“But there may be other persons who have a legitimate concern about some part of their government who can be discouraged just by the cost of something. So when we think about (allowing) local governmental entities to assess charges for inspection. And someone comes in and they are greeted with, ‘You’ll have to leave a credit card so that we can make our inspection and assess any changes that we may have to make.’ Or they can say, ‘Well that’s going to cost you $15 for our inspection.’ And the person doesn’t really have $15 discretionary dollars, but it’s an important question to them.”
He noted that any legislation on public records based on “horror stories” in two or three counties would affect more than 6 million citizens in 95 counties.
Butterworth agreed to let a “subcommittee” of ACOG edit the questionnaires and agenda items for the hearings, and return them to her for consideration.
She suggested that even if this questionnaire was shortened, she would like to pursue additional surveys in the future to gather information that would be helpful to her office in updating documents such as the Schedule for Reasonable Charges, the Frequent and Multiple Request and Safe Harbor Policies and the Best Practice Guidelines and FAQ. (All of these documents are available on the Office of Open Records Counsel website.)