Three state agencies file hearing notice for public records rules; one bans photos

Three Tennessee state agencies have upcoming public hearings on proposed public records rules.

  • Department of Mental Health and Substance Abuse Services, 9 a.m. Wednesday, Aug. 15 at 500 Deaderick Street, Ground Floor Room G.227.
  • Department of Labor and Workforce Development, 10 a.m. Thursday, Aug. 30 at the Tennessee Room, 220 French Landing Drive, 1-A.
  • Division of Tenncare, Department of Finance and Administration, 9 a.m. Tuesday, Sept. 18 at 310 Great Circle Road, Conference Room 1 East A.
public records policy Tennessee

In advance of public hearings, three state agencies have published their proposed rules on accessing public records. (Illustration by CC BY-SA 3.0 by Nick Youngson)

Each of the agencies is proposing rules that will govern access to public records. Members of the public may make comments at the hearings or submit comments in advance. Last year, the legislature changed the law to require agencies to go through the rule-making process in establishing public records policies regarding access. The step provides for more oversight and allows public comment.

At least one of the agencies proposes to ban requesters from taking pictures of public records. Two require proof of residency to access public records, and allow denial if no proof is provided with the request.

In addition, one of the agencies indicates it might charge fees if someone wants to inspect records if it has to incur costs to compile records. (Under the law, no charges can be assessed for inspection of records.) Only two of the agencies have some sort of fee waiver system.

Here are some highlights of each of the agency’s proposals, in light of issues examined by TCOG in a recent audit.

Department of Mental Health and Substance Abuse Services

Contact to send written comments: Jim.Layman@tn.gov

Proposed rules: https://publications.tnsosfiles.com/rules_filings/06-20-18.pdf

Identification requirements: Requires driver’s license or Tennessee ID card as condition to inspect records. Denies access if no proof is provided.

The requester shall provide proof of his/her Tennessee citizenship to the PRRC at the time the requester submits his/her public records request. The requestor’s Tennessee citizenship shall be proven by presentation to the PRRC of a valid Tennessee driver’s license or Tennessee identification card. Proof of the requestor’s Tennessee citizenship shall be provided as a condition to inspect or receive copies of public records.

Photography of public records: Does not prohibit photography, but requires the agency or its agents to be in custody of the records at all times.

TDMHSAS, or its contractors or agents, shall maintain custody of its records at all times. A requestor shall not be allowed to take custody of any TDMHSAS record.

Fees and fee waivers: No charges for inspection only. Fees for copies follow the Office of Open Records Counsel Schedule of Reasonable Charges (15 cents per page, first hour of labor free, etc…) Waives fees if under $10, and allows public records request coordinator to waive fees for records that are in the interest of the agency and “for the public good.”

When fees for copies and labor do not exceed $10, the fees may be waived by the PRRC. Requests for waivers for fees above $10 must be presented to the PRRC, who is authorized to determine if such waiver is in the best interest of TDMHSAS and for the public good. Fees associated with aggregated records requests will not be waived.

Department of Labor and Workforce Development

Contact to send written comments: Troy Haley at troy.haley@tn.gov

Proposed rules: https://publications.tnsosfiles.com/rules_filings/07-02-18.pdf

Identification requirements: May require government-issued ID, but does not make it mandatory in all instances. Allows denial of access if the requestor is not a Tennessee resident.

Proof of Tennessee citizenship by presentation of a valid Tennessee driver’s license or other government-issued photo lD may be required as a condition to inspect or receive copies of public records.

Photography of public records: Bans photography or self-copying of public records.

A requestor will not be allowed to make copies of records with personal equipment. Photographs of records are not allowed.

Fees and fee waivers: Says no charges for inspection. But under section labeled “Fees and Charges and Procedures for Billing and Payment,” outlines a research and copying fee, and a per page cost of 25 cents after the first 25 pages. Does not appear to follow the Office of Open Records Counsel Schedule of Reasonable Charges. No fee waivers are outlined in the policy.

Fees for researching and copying shall be ten dollars for conducting the search, which shall include the first twenty-five (25) pages and twenty-five cents for each page after 25 pages. The Bureau shall charge an additional fee of $10.00 for certified records.

Court of Workers’ Compensation Claims and Workers’ Compensation Appeals Board Records: The proposed rules outline which records are not open for inspection of the court of workers’ compensation claims and the appeals board.

Division of Tenncare, Department of Finance and Administration,

Contact to send written comments: George Woods at george.woods@tn.gov

Proposed rules: https://publications.tnsosfiles.com/rules_filings/07-15-18.pdf

Identification requirements: Requires proof of residency as condition of inspecting or getting copies of public records, and allow denial if not provided. However, the agency retains discretion to provide records when requested from an out-of-state journalist.

Proof of Tennessee citizenship by presentation of a valid Tennessee driver’s license (or at TennCare discretion an alternative acceptable form of ID) is required as a condition to inspect or receive copies of public records.

Requests by journalists, media organizations, outlets, agencies and their representatives may be treated as Media Inquiries and responded to based on the procedures of the TennCare Communications Office. It is the policy of TennCare to respond only to public record requests by journalists who are Tennessee citizens. Interstate journalist and media organization requests shall be treated as Media Inquiries rather than as records requests and such requests will be responded to at the discretion of the TennCare Deputy Director of Communications and Employee Relations. Contact information for the Communications Office is available on the TennCare website.

Potential charges to inspect records: Indicates that the agency will charge labor fees for inspection to prepare records for inspection.

There shall be no charge for inspection of open public records. However, charges may be incurred for preparation of records for inspection which may include labor costs and outside vendor expenses for collection and redaction as appropriate.

Photography of public records: Allows a requester to use cell phone or handheld camera to make pictures, but not other equipment for self-copying.

Except for the use of a cell phone or handheld camera, a requestor will not be allowed to make copies of records with their personal equipment during the inspection of such records.

Fees and fee waivers: Waives fees when they fall under $50 and duplication costs when pages are fewer than 10. Also waives mailing costs that are under $15.

When fees for copies and labor do not exceed $50.00, the fees will be waived . Requests for waivers for
fees above $50.00 must be presented to the PRRC, who is authorized to determine if such waiver is in the
best interest of TennCare and for the public good. Fees associated with aggregated records requests will
not be waived.

(4) Fees and charges for copies are as follows:

(a) $0.15 per page for letter- and legal-size black and white copies.
(b) $0.50 per page for letter- and legal-size color copies.
(c) Shipping or mailing costs in excess of $15.00.
(d) Labor when time exceeds 1 hour for time reasonably necessary to produce requested records, including the time spent locating, retrieving, reviewing, reproducing, redacting or scanning records. The cost will vary depending on the hourly rates of the employee(s) doing the work and may include the time of an attorney reasonably necessary to review records and redactions to ensure compliance
with confidentiality requirements of state and federal law.
(e) If an outside vendor is used, the actual costs assessed by the vendor.
(f) If transfer is performed via disk, such as a flash drive, the agency’s cost for procuring such a device.

(5) No duplication costs will be charged for requests for less than 10 pages.

What do you think?