A news reporter in Nashville called me recently when a public information officer for the Metropolitan Development and Housing Agency refused to release a document that had been voted upon a few days earlier by a subcommittee of the public agency’s board of directors.
The full board of directors was set to vote on it in less than a week.
It was not secret document. It had no confidential information. It was an agreement that outlined how a developer would get $12.5 million in taxpayer money through tax-increment financing to help him build a $225 million skyscraper in downtown Nashville.
The public information officer told the reporter that he could not have the document until after the full board voted.
That’s not what the law says. Note the words “shall promptly”:
The custodian of a public record or the custodian’s designee shall promptly make available for inspection any public record not specifically exempt from disclosure. In the event it is not practicable for the record to be promptly available for inspection, the custodian shall, within seven (7) business days:…[Tennessee Code, 10-7-503(a)(2)(B)]
This is part of the Tennessee Public Records Act. You can find the rest of it here.
It’s a strong law that stands up for citizens.
It shouts from the rooftops that government should be open and accessible.
And any funny business where a government employee might want to hide a government record or delay its release will not be tolerated.
But some local government officials seem to have crossed out part of the law in their personal copies, preferring to read it this way instead:
The custodian of a public record or the custodian’s designee shall promptly make available for inspection any public record not specifically exempt from disclosure. In the event it is not practicable for the record to be promptly available for inspection, the custodian shall, within seven (7) business days:…
In other words, they’ve decided they have seven days before they must do anything.
The document requested by the Nashville news reporter was a public record the moment it was created. It was a public document when it went into the agenda packet for its first public vote before the subcommittee. And it continued to be a public document after the vote.
The reporter called back, and explained the law. The public information officer gave him the document. But added this:
“We have seven days from the request to provide the document, deny the document with explanation or explain when the document will be available.”
That’s not what the law says.
The seven days is permitted only when “it is not practicable” to make the record “promptly available for inspection.” If the Legislature had meant something different, it would have said something different.
The Office of Open Records Counsel weighed into this issue in 2010 when The Cleveland Banner related a hypothetical scenario of a public board that releases an agenda but won’t release the agenda packet that contains the specifics of what’s being discussed and voted upon.
The OORC points out in the opinion “Public Access to Board Packet Materials” that information in the packet is a public record as soon as it’s made, and barring any confidential information, should be released promptly.
“It is the opinion of this office that if there is no confidential information within the board packets described in your hypothetical, a citizen would have the right to request to either inspect or receive a copy of the packet as soon as it was completed and access should be provided as promptly as possible thereafter, unless a rational good faith basis existed for the packet not being made available promptly.”
What’s a good reason for not making something available immediately? Some requests are expansive and require finding and compiling documents from various places. Some documents require redaction of confidential information.
We know what a complicated records request is. And we know what it’s not.
A citizen recently asked to see a city’s policy on reimbursing employees for business expenses, if one existed.
The city sent him a form letter 8 business days later, saying they were in the process of retrieving, reviewing and redacting the requested information and it would be available in 6 more business days, or he would be informed at that time about the record’s availability or accessibility.
If a reimbursement policy is that complicated to hunt down, and if there is some concern that a standard policy normally found in an employee handbook contains “confidential information,” the city has got bigger problems beyond transparency.
When I do public records training for journalists, I tell them that they should pay attention to what is happening to citizens. Media has a platform to broadcast it when public officials engage in outlandish delay tactics. Citizens don’t.
Routine, easily accessible records should be made promptly available for inspection.
If you get a response like the reporter did from the MDHA public information officer, ask why it’s not practical, feasible, realistic or possible for the record to be available for inspection promptly. Show them the law.
Legitimate reasons exist. Managing the message is not one of them.
Deborah Fisher is executive director of Tennessee Coalition for Open Government, a nonprofit alliance of media, citizens and good government groups that promotes open government principles.