Taking pictures of public records banned under personal equipment prohibition

The ability of a requestor who is inspecting public records to make their own copies has increased dramatically with technology.

Once, to make your own copies, you might have to bring in a scanner. Now, a citizen can take pictures of public records with their cell phone. It doesn’t create a perfect copy, but for many requestors, taking a picture allows them to avoid taking notes with pen and paper and creates a file they can easily share with others and refer to later.

It also allows the requestor to avoid copy fees of 15 cents per black and white page and any labor fees associated with making the copies.

Banning pictures of public records

However, the TCOG audit of public records policies found that many government entities have adopted prohibitions against using “personal equipment” to make copies of public records, which could include cell phone cameras. Tennessee Coalition for Open Government’s examination of public records policies showed:

  • 48% prohibit the use of personal equipment to make copies of public records.
  • 41% do not mention the use of personal equipment to make copies.
  • 5% state that use of personal equipment is permitted.
  • 4% allow or prohibit the use of personal equipment under circumstances described in the policy.
  • 2% of the policies were unclear.

The ban on personal equipment is much starker when examining policies by government type.

Of the cities surveyed, 78% prohibited use of personal equipment, while only 4% allowed it. Another 13% of city policies did not mention use of personal equipment for making copies, and 5% allowed or prohibited it under certain circumstances that were described.

Of the counties surveyed, 67% prohibited use of personal equipment, while 13% percent allowed it, 9% percent allowed or prohibited under certain circumstances that were described, and 8% did not mention.

Only 8% of school district policies prohibited the use of personal equipment. Most of the school district policies, 92% percent, chose not to mention personal equipment for making copies at all in their policies, leaving some question about what their practice might be if confronted with the issue.

The law on a person’s right to make copies

The law provides that:

“(i)n all cases where any person has the right to inspect any such public records, such person shall have the right to take extracts or make copies thereof, and to make photographs or photostats of the same while such records are in the possession, custody and control of the lawful custodian thereof or such custodian’s authorized deputy; provided, that the lawful custodian of such records shall have the right to adopt and enforce reasonable rules governing the making of such extracts, copies, photographs or photostats.” [T.C.A. § 10-7-506(a)]

While the law specifically says a person has the right to “make copies” and “make photographs,” some government entities point to the following language allowing them to adopt “reasonable rules” to justify their bans on a requestor using personal equipment.

Other entities interpret “reasonable rules” to mean rules about the time and place for requestors to use personal equipment or rules to protect fragile documents.

State’s “model policy” gives option

Most policies that included a personal equipment provision picked up language from the the “Model Public Records Policy” published by the Office of Open Records Counsel in 2017:

A requestor will [not] be allowed to make copies of records with personal equipment. [Indicate under what circumstances, if any, the Governmental Entity will permit requestors to make their own copies or provide their own storage devices.]

The inclusion of this language in the model policy indicates that the Office of Open Records Counsel may have concluded it is permissible to ban a requestor from making copies of records with personal equipment, at least under some circumstances.

Knox County Mayor Tim Burchett

The issue came to a head in Knox County in late 2017 when it became known that the county’s policy prohibited personal equipment, including cell phones, from being used to make copies of records.

The county commission, at the request of Mayor Tim Burchett, in December eliminated its ban.

Also in 2017, the Joint Government Operations Committee of the House and Senate expressed concern that some state agency policies prohibited people from taking pictures of public records with their cell phones. The co-chair of that committee, state Sen. Mike Bell, R-Riceville, requested that the entities update their policy to something more reasonable.

More investigation would be necessary to determine why government entities are prohibiting use of personal equipment to make copies, especially when that equipment, such as a cell phone, risks no damage to the actual record.

Many states that have confronted the issue have concluded that requestors should be allowed to make copies of public records with their phones, noting the employee time saved and paper costs.

Kentucky, Virginia, Georgia, Maine, Iowa, Florida, Washington, Texas, Arizona and Louisiana are just some states that allow photography and use of personal equipment to make copies of non-exempt public records. If there are restrictions, they often are limited to when there is a threat of damage or tearing.