The Office of Open Records Counsel is conducting public records hearings in Knoxville, Nashville and Jackson in September to ask the question: Should the Tennessee Public Records Act permit the government to charge citizens to inspect public records?
The Tennessee Coalition for Open Government believes that charging citizens to view public records would make it easier for some government officials to block citizen access to records. We believe that the result of a change in Tennessee law would be immediate: Some citizens would no longer be able to view public records because they could not afford to pay the fees.
The change would roll back Tennessee’s legal tradition of favoring government transparency and give officials who wish to limit access a new club to use to hinder access to records they don’t want anyone to see. In essence, it would create a new exemption to the Tennessee Public Records Act: A government record is exempt from the Public Records Act if a citizen can’t pay the price set by the government official to see it.
Our great state of Tennessee would have the equivalent of a “poll tax” for public records, opening the door for arbitrary charges that would be nearly impossible to challenge. We know the result of that kind of system.
Why is it bad to block society’s access to government records?
Public records belong to the citizens of Tennessee. They pay for these records through their taxes. Government officials are public servants and should make it a very high priority to honor the right of citizens to information about their government. The right of access to public records long predates the Tennessee Public Records Act. The Act should not become a tool to restrict access to records that clearly ought to be public.
TCOG believes that access to government records is crucial for informed citizen participation in a democracy; citizens cannot exercise their rights as citizens without broad and free access to public records.
Broad and free access to public records is essential to holding government officials accountable. Government serves citizens, not the other way around. Citizens must know what their public officials and employees are doing, and how they are doing it. If public officials and employees get to choose what citizens get to know about what government is doing, the constitutional power vested in citizens in a democracy is destroyed.
New tax on journalism
We also believe this proposal would reduce the ability of journalists to report on government.
Journalists are among the most frequent users of public records. They use public records to verify the accuracy of public officials’ statements, to evaluate the effectiveness of public policy, and to give facts and details about issues that will be voted on by the general public or governing bodies.
Journalists are an essential information resource for citizens – one that must be independent from government. Government should not be able to prevent the access needed to do the job by imposing excessive fees.
Media organizations are more able to pay for copies of public records, but if they were charged every time they wanted to look at public records, the cost would reach into the thousands of dollars very quickly.
New government fees on access to records is nothing less than a new tax on journalism.
Public records fees already abused
We do not have to look far to see how this change in the law would be implemented. Our law already provides for per-hour labor charges to provide copies of public records. We have often seen copy fees inflated to more than $1,000 because they include the most expensive procedures and personnel, including paying hourly rates for outside legal counsel to routinely review and redact documents.
This new tax on journalism and new “poll tax” on citizens would simply be new revenue for something we are already paying government to do: Create, maintain and make public records available to the citizens who own them.
The proposal to create new public records fees is one of the top priorities for the Tennessee School Boards Association who introduced the legislation this year to allow it.
But the new government revenue would not be used to improve efficiency or increase transparency. In a perverse way, allowing per-hour labor charges actually provides incentive to find ways to take more time, not less, in fulfilling public records requests.
TCOG will continue to promote efficient and common-sense ways to reduce costs of fulfilling public records requests that preserve citizen access and transparency. That is not what the proposed legislation seeks to do.
Deborah Fisher is executive director of Tennessee Coalition for Open Government, a 12-year nonprofit, nonpartisan organization whose mission is to preserve and improve government transparency. She can be reached at firstname.lastname@example.org.
Share your thoughts online or at public records hearings
Open Records Counsel Ann Butterworth is collecting comments about changing state law so governments can charge citizens fees to inspect public records. She plans to make a recommendation to the Legislature in January. The public can comment online and in public hearings in Knoxville (Sept. 15), Nashville (Sept. 16) and Jackson (Sept. 17). You can email thoughts to email@example.com and get information about the public hearings at the Office of Open Records Counsel website.