Bill would prohibit destruction of public records that are subject to pending records request

The House State Government committee on Thursday approved a bill that would prevent the destruction of public records that are subject to a pending records request, paving the way for the bill to move on to a possible floor vote.

State Rep. Mike Carter, R-Ooltewah, presents bill that would make it unlawful to destroy public records while they are subject to a pending records request.

The bill, H.B. 2578, was sponsored by state Rep. Mike Carter, R-Ooltewah, who explained that a problem arose in Hamilton County last year when the Times Free Press newspaper requested records, and thereafter, the records were destroyed by the custodian before they could obtain them.

State Sen. Todd Gardenhire, R-Chattanooga, is carrying the bill, S.B. 2313, in the Senate where it had passed the Senate State & Local Committee before the Legislature recessed in March because of the COVID-19 pandemic.

Bill allows judge to assess a $500 fine

The bill has gone through some changes since it was first introduced. The Senate version included criminal penalties for knowingly destroying a public record that was subject to a pending request. The House bill, as amended on Thursday, makes the penalty a civil fine of up to $500 to be issued by a court. (See the House amendment that passed).

Many states have statutory provisions that make it unlawful for a records custodian to destroy a record for which they have received a records request. Some have criminal penalties; others have civil penalties.

Tennessee Coalition for Open Government has supported closing the gap in Tennessee law, and testified before the House State Government Committee to help explain the problem. (See video of the bill’s presentation and testimony here.)

Bill would requires a check before authorizing records destruction

The amended House bill says that a “governmental entity shall not authorize destruction of public records … if the governmental entity knows the records are subject to a pending public records request submitted to the governmental entity.”

“Prior to authorizing the destruction of public records, a governmental entity shall contact the public records request coordinator to ensure the records subject to destruction are not subject to any pending public records request…”

The bill also contains a provision that says the government entity is not liable for authorizing destruction if it contacted the records custodian and received notice from that custodian that the records were not subject to a request. The bill also expressly states that the proposed statute would not prohibit a custodian from disposing of records in accordance with an established records retention schedule or policy when they have no knowledge that records are subject to a pending request.

12-month retention would be required for responses to requests

In addition, the amended bill requires that written correspondence with the public regarding public records requests must be retained by the records custodian for at least 12 months. This retention requirement would include the requests for public records and responses by the entity to the requestor, but would not include the actual records that had been requested and provided to the requestor.

In the incident involving the Times Free Press, a news reporter had asked for all records requests and responses to those requests for a period of 12 months, minus the actual underlying records that were requested. The newspaper was attempting to examine the types of requests and types of responses given by the Hamilton County public records request coordinator, who is part of the Hamilton County Attorney’s office.

While going back and forth over the cost of obtaining access to these records, the Hamilton County’s public records request coordinator, Dana Beltramo, went to the Hamilton County Public Records Commission and requested authorization of a new policy to allow her to destroy records requests she receives, and her office’s responses to those requests, after 30 days. These were the very types of records that the newspaper had wanted to inspect.

Months later, as the newspaper was still in talks to try to get the records, the Hamilton County Attorney’s office told the newspaper that they had been destroyed per the new policy.

County Public Records commissions can authorize retention periods

At the local levels, county public records commissions are authorized to set polices on retention periods for county records. They can seek guidance from the County Technical Advisory Service (CTAS) on suggested retention policies for certain types of records, but are not bound by CTAS suggestions.

CTAS does not have a specific retention period suggestion for records requests, and responses to records requests. However, the Tennessee Public Records Commission has adopted a retention period of 5 years for state agency correspondence with the public about access to public records. (See Records Disposition Authorization No. SW35)

What do you think?