The Daily Times: Model records policy should not aid wallbuilders, suggest loopholes

We should listen to journalists in the field when it comes to access to public records.

Buzz Trexler, editor at The Daily Times in Maryville, reminds me of a question I was once asked in a TV interview: What’s the hardest public record to get? My answer: The record a government official doesn’t want you to have.

Too often, journalists are given the runaround or hit roadblocks when a public official for some reason doesn’t want “the media” to have access to some public record, or want to delay news that the public record would convey. My observation has been that citizens, without the support of a media organization behind them, have it even tougher.

The Tennessee Public Records Act is strong and protects against such shenanigans. But we need to make sure that a model public records policy under development by the Office of Open Records Counsel doesn’t suggest loopholes in the law that aren’t there.

Trexler, in an editorial today, “Model records policy should not aid wallbuilders” urges caution about proposed language:

It all seems pretty simple; however, oftentimes what seems like a simple change in wording can become a stumbling block to open government, as Tennessee Coalition on Open Government noted in its public comments on the draft.

For instance, at the onset, the draft cites only part of Tennessee Code that drives this process, omitting a crucial statement: “The public records policy shall not impose requirements on those requesting records that are more burdensome than state law …” Including this statement would be an important reminder to public officials that they cannot erect a wall that the General Assembly and public never intended to exist.

An example of how a simple set of words can build such a wall is the statement that says “records custodians may adopt reasonable rules governing the manner in which records requests are to be made and fulfilled.” It doesn’t take much imagination to see that what one person sees as “reasonable” can be one more brick in a wall that blocks public access.

Along that same vein, when it comes to “Best Practices & Guidelines” TCOG suggests adding this reminder: “Fees and other rules should not be used to hinder lawful access to public records.” We agree, because driving up associated fees can become just one more brick in a wall of separation between the public’s business and the public.

There’s also language under the heading “Making Public Records Requests” that suggests entities can choose not to fill requests by email. Given that such a restriction is the subject of a current court case, we like TCOG’s suggestion: Add a statement that says, “A records custodian should not limit how written records requests are received, and should allow a requester to submit written records requests by email if the government entity regularly uses email to conduct other government business.” There’s nothing like creating open space where someone might like to put a brick.

Likewise with the word “practicable” and “practicably” in reference to “Responding to Public Records Requests.” Just as with the word “reasonable,” we can see that word becoming a brick when, in one person’s mind, responding in a prompt manner in less than seven days is just not “practicable.”

The story goes that W.C. Fields was once seen reading a Bible and told an acquaintance he was “looking for loopholes.”

We would just encourage the OORC to pay attention to words that allow wallbuilders room to erect hindrances to public access.

Let’s face it, some folks are always looking for loopholes.

What do you think?