Open Records Counsel: Chattanooga utility EPB wrongly demanded fees to view public records

The city-owned utility of Chattanooga charged a University of Tennessee-Chattanooga student $1,767 to view its public records on advertising spending — an amount that the state’s Open Records Counsel said is not in line with the law.

Despite counsel Elisha Hodge telling Electric Power Board of Chattanooga (EPB) that it could not charge labor fees to compile records for a citizen to inspect, the utility stood by its decision in a story in the Chattanooga Times Free Press and tried to justify its action by saying the student was working with a national think tank.

Ethan Greene, a student at University of Chattanooga

Ethan Greene, a student at University of Tennessee-Chattanooga

Student Ethan Greene on March 24 requested to inspect EPB’s advertising records from January 2012 to March 2014 including contracts, advertising expenditure checks and copies of emails including terms such as “television ad.”

Greene told Tennessee Coalition for Open Government that he got involved because he was concerned about the cost of his EPB service and the huge amount of advertising that it seemed the utility was bombarding its customers with. He said he was a marketing-political science major, wanted to act upon his studies and connected with the libertarian group Taxpayers Protection Alliance that researches government waste while on campus.

No matter the purpose of a citizen’s request, the Tennessee Public Records Act clearly states that a “records custodian may not …  assess a charge to view a public record unless otherwise required by law.”

But EPB didn’t see it that way, and in a May 2 letter, told Greene that they would not pull the records and make them available for him to inspect until he wrote a check for $1,767 to cover their labor hours for compiling the records. Greene went down to the utility office and wrote a check, which was cashed by EPB on May 16.

The utility said it would take 10 days to compile the records after receiving Greene’s money. But after more than 10 days had come and gone, and he couldn’t get EPB to give a  new estimate on when he might get the records, Greene contacted the state’s Office of Open Records Counsel.

He wasn’t calling about the fee, but when Hodge heard his story, she told him he could not be charged to look at the records — the law only provides for reimbursement of labor charges for compilation if a citizen wants copies of records.

She also reached out to the attorneys at EPB and explained the law to them.

Elisha Hodge, state of Tennessee's Office of Open Records Counsel

Elisha Hodge, state of Tennessee’s Office of Open Records Counsel

“I explained that it is the opinion of this office that since you made a request to inspect, you should not have been assessed labor fees,” Hodge wrote to Greene in an email. “In response, I was told that you requested records that  are not maintained the way in which you requested them. As such, staff had to compile the records and that is the basis of part of the labor fee. Additionally, since you made a request for email by search terms, staff had to extract the emails and that is why you were assessed labor. Additionally, the attorneys asserted that Tenn. Code Ann. Section 10-7-503(a)(7)(C) provides them the basis for assessing the labor fees. I pointed out that the provisions speaks about being able to assess the fee in accordance with the Schedule of Reasonable Charges and both the Schedule and the language directing the office to establish the Schedule only speaks about fees being assessed for copies and not inspection (see also the language in Tenn. Code Ann. Section 10-7-503(a)(7)(A) that only permits a records custodian to assess a fee for inspection when required to do so by law).

“The attorneys for EPB disagree with my analysis and feel that they have the legal right to assess you for the request to inspect.”

Three months later, records provided

Hodge also talked with EPB about responding to the request to inspect, prompting an EPB lawyer to contact Greene on June 3 telling him it was taking much longer than they thought to compile and they needed until June 19 to have everything ready.

EPB finally on June 19, nearly three months after his request,  told Greene the records were ready for him to inspect.

By then, Greene had contacted lawyer John Anderson of Grant Konvalinka & Harrison, who had written a letter to EPB on his behalf protesting the charges. The utility’s legal department responded by mid-July that they agreed with the position that Greene was entitled to view the records and EPB was not entitled to charge him for compiling the records. However, EPB continued to assert it could charge the cost of redaction, and a new accounting would be forthcoming.

Greene said today that he still has not received a new accounting, he can’t afford to continue to pay a lawyer, and he doesn’t expect EPB to refund the $1,767, so he wants to go ahead and pay any additional amount to get a copy of the documents, which had been scanned by the utility as PDFs. The taxypayer group reimbursed him for the $1,767 and he begins his junior year this fall at UT-Chattanooga.

Fees to view public records

For those who care about citizen access to government records, the fee issue is a huge one.

The runaround Greene received, despite help from the Office of Open Records Counsel and a private law firm, shows the depth of resources and determination possessed by a government-owned entity like EPB to keep the public from looking under its hood.

Someone asked me once what’s the hardest record to get from government.

My answer: The record they don’t want you to have.

And simply put, there is no quicker way to block a citizen’s access to government records than to charge fees. 

There have been rumblings by groups, such as the Tennessee School Boards Association, to try to get the law changed to allow fees for inspection.

It would rack up a new revenue stream from taxpayers, but worse, it would tilt the law against citizens, and open the door for abuse.

In that world, citizens who can pay get access; those who can’t, don’t.

EPB’s defiance of state law this summer only underscores how much some governmental entities think they need that power.

Deborah Fisher is executive director of Tennessee Coalition for Open Government, an alliance of citizens, media and good government groups who work to promote government transparency.

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