A bill that would remove the statutory guarantee that citizens cannot be charged fees to view public records revives an idea that was floated in 2015 but received so much public opposition that the sponsors withdrew the legislation.

The bill this year, SB 2534 and HB 2635, is being sponsored by Sen. Ferrell Haile, R-Gallatin, and Rep. Dave Wright, R-Knox County, at the request of the Tennessee Police Chiefs Association.

The bill would allow custodians to require a requester to pay “reasonable costs…including, but not limited to, the labor costs associated with locating, redacting and producing each record requested for inspection.”

State law allows for such charges only if a requester asks for copies. Someone seeking to view public records — and not get copies — cannot be charged.  The change proposed in the new bill would be enormous and create a new obstacle for the public to access government records. It is not unusual for people requesting copies of public records to be charged hundreds of dollars, or even thousands of dollars if a high-paid employee like a director of schools or attorney is involved in compiling or reviewing the records. It is not unreasonable to assume those same charges would be levied on citizens who just want to inspect records.

2015 bill was withdrawn after hearings around the state

The idea to start charging requesters to inspect public records emerged in 2015 in a bill being pushed by another government association, the Tennessee School Board Association. The sponsors delayed the bill and asked the Office of Open Records Counsel in the Comptroller’s Office to study the issue over the summer and produce a report.

The Office of Open Records Counsel, then led by Ann Butterworth, did a survey and held public hearings in Knoxville, Nashville and Jackson. According to the report, the overwhelming response from the public was to keep inspection free, with fears that charging for inspection would block access for those who can’t afford to pay.

The report observed that “[m]any citizens believe the term ‘public record’ means that the information or record has already been paid for by the public through their tax dollars and therefore is owned by the public; requiring payment for inspection and charging for governmental staff time would be in effect double billing.”

The report also noted that “[m]any believe that charging for inspection has the potential for unbudgeted, excess funds creating slush funds.”

Most opposed fees for inspection

The report said that most comments received expressed a viewpoint opposing any fees for inspection, and only a minority thought the law should be changed.

“Charging fees to view the records would limit access to those records to those who can afford to view them, and such limitations would be antithetical to our democracy,” said one speaker at a public hearing.

“If government adds fees as an obstacle to look at those records…or keep them hidden away…the cost of that kind of secrecy is high,” said another.

“Keep the records free and easily accessible, our liberty and freedoms depend on it,” said yet another.

Look for ways to remove barriers, not create new ones

One commenter cited a Better Government Association Integrity Index from 2013 that ranked Tennessee 38th out of 50 states with respect to citizen access to public records, focusing on three topics: procedures, barriers and penalties.

“Imposing a fee would be a step in the wrong direction,” said another who echoed the sentiment. “Even today citizens are sometimes made to feel that they are the ‘enemy’ when they request public records. Instead of creating a new barrier with a fee, we need to be looking for ways to remove existing bureaucratic obstacles. We all need work at creating a climate where members of the public and government officials realize we are on the same team and wear the same color jersey.”

Others felt, the report said, that the government needed to make more records available on the internet, thereby increasing transparency and eliminating inspection issues.

“It’s time for a new paradigm,” one commenter said. “Except for records made confidential by law, all governmental records created in electronic digital form should be available to the public at the time of creation via the Internet.”

Another said: “There are thousands of individuals at all levels of government creating and maintaining records, but the technology is available to make the creation, storage, and access to our public records easier and more efficient for all parties, custodians and citizen non-custodians alike…”

Move into the realm of ‘technological reality’

“It is time to think about moving public records access discussions into a realm of readily available technological reality and it is time to acknowledge that placing custodians in the business of designing, implementing, and collecting an information tax would do nothing to support our goal of transparent and open government.”

The Office of Open Records Counsel noted that government entities do bear a cost to respond to a public records request, including redacting confidential information from records. It also observed that not all governmental entities have “kept up with technology.”

“Locating records is made more difficult by the lack of consistent records creation and storage and of compliance with record retention schedules. Most governmental entities do not have clear standards for naming or tagging electronic records or a process for updating the format in which records are stored,” the report said.

The report also observed that governmental entities do not appear to routinely redact records at the time of receipt or creation or perform reviews of existing records to verify if there have been changes in the law since the creation or receipt of the record.

“This places a records custodian in a reactive, rather than a proactive, stance in responding to a TPRA request and increases the time for response.”

Report: Improve records management

The report suggested potential changes that could be considered if the cost of preparing records for inspection is not shifted to citizens. For example, it suggested that records management be improved. It would be helpful to:

  • Provide incentives for best practices;
  • Adjust/clarify documentation and retention requirements; and
  • Prescribe permitted use of e-mail “in connection with the transaction of public business.”

The report also suggested making definitions in the Tennessee Public Records Act more uniform, providing guidance for custodians when responding to requests that are large or complex and clarifying a distinction between discovery requests and requests under the public records law.

The report said it would help if government did a better job anticipating continuous changes in technology impacting how records are received, created and accessed, and considered the costs of record storage, maintenance and production. It suggested that government affirm the public need for the creation of additional records / information in light of privacy and security concerns and better address confidentiality of any information in a record that is created or received.

After the report was delivered, the sponsors withdrew their bills in early 2016.

What happened after 2016?

Some changes have taken place since 2016, aiming to improve the process and address people who abuse the system. For example, a new law was passed to allow a government entity to stop fulfilling public records requests for citizens who never show up to inspect records they requested. It also allowed government entities to not fulfill any more requests for copies from a citizen who failed to pay the bill for copies of records on previous requests.

Another piece of legislation required government entities to designate a public records request coordinator that could more efficiently route requests to the proper custodian. That bill also required government entities to establish a public records policy setting forth details of the process.

The Office of Open Records Counsel also produced a searchable online database of the exceptions to the public records law, and now updates it regularly as a resource for both government and the public.

In 2018, an ad hoc Open Records Committee formed by the House and Senate leaders held hearings on exceptions to the public records law and recommended changes, including giving additional vetting for new exemptions and implementing some sort of sunset or repeal process to allow exemptions that are no longer needed to expire.

Finally, last year, a law was passed that allowed a government entity to pursue an injunction against a requester who was using the public records law with an intention to “interfere with government operations.”

Very little, if anything, has been done to encourage better utilization of technology to reduce the costs of maintaining public records or making them easily available to the public. A bill that would have required governing bodies to put their meeting agendas on their websites faced opposition, for example, in early 2020.

And the mixing of confidential and non-confidential information on many standard forms used by the government also continues to create costs because the confidential information must be reviewed and redacted each time someone requests access.