(Updated 9-21-17 with quotes from the meeting, and more background on the development of the Model Public Records policy that allows government entities to ban photography.)

Three state agencies were instructed to re-examine their public records policies that prohibit citizens from taking photos of public records during a meeting of the Joint Government Operations Committee meeting today.

State Sen. Mike Bell, R-Riceville

State Sen. Mike Bell, R-Riceville, the Senate chairman of the committee, asked the Comptroller’s Office, the Tennessee Department of Transportation and the Tennessee Wildlife Resources Agency to review their policies to allow citizens to use technology, like their cell phone, to take photos of public records.

All three of the agencies’ new public records policies prohibit citizens from making copies of records with personal equipment.

The agencies were before the joint operations committee to suspend the rule-making process for access and inspection of public records in light of a new law, T.C.A. 10-7-503(g) which requires all governmental entities to “establish a written public records policy properly adopted by the appropriate governing authority.”

No one on the joint committee questioned the new process of adopting public records policies — except to say they would have preferred that process continue to go through rules — but Bell said that some of the new policies were too restrictive in that they prohibit a citizen from using a camera to take a picture of a record.

He said he planned to ask the Office of Open Records Counsel to draft model language that could be used by all state agencies to make sure that all state agencies allowed people to photograph non-exempt records.

At the meeting, he told the representative from the Comptroller’s Office:

“One of the things that I would like for you to take back to the Comptroller of the Treasury is to make sure that we as a state stay as transparent as possible that we allow our citizens to use all the available technology under supervision that is available to them out there — and one of them being able to photocopy a record with a cell phone. I’m not talking about records that may have confidential information that would have to be redacted. That would set up a whole new set of problems that would have to be overcome before it could be done. But on a normal record that does not have confidential information on it, that we allow citizens as much freedom as possible.

“And it’s probably the most cost-effective way to be done for the department and time-effective for the citizen,” Bell added

State Rep. Jeremy Faison, R-Cosby

State Rep. Jeremy Faison, R-Cosby, and the House chairman of the Committee, told the committee that he reached out Tuesday night to Jason Mumpower, chief of staff for the Comptroller, about the photography ban. He said Mumpower assured him that it was not the intention of the Comptroller’s Office to prevent citizens from photographing non-exempt records. The Comptroller had based its policy on the “Model Public Records Policy” developed by the Office of Open Records Counsel, a state department that resides in the comptroller’s office.

Representatives with TDOT and TWRA also said it was not their intention to ban photography, and promised to re-examine the policies. Having talked about the issue with Bell ahead of time, TWRA representative Chris Richardson had brought to the meeting new language that would make it clear that photography was allowed.

Bell asked that all three agencies report back to the Joint Government Operations Committee.

Last year, Tennessee Coalition for Open Government and others urged the Office of Open Records Counsel in written comments to delete language in a draft of the model policy and guidelines that allowed a government entity to prohibit citizens from taking a photograph with their phone. The law says that government entities can “adopt and enforce reasonable rules governing the making of such extracts, copies, photographs or photostats.” Citizens contacting TCOG’s Help Line have reported that a growing number of government entities have started to prohibit photographs of documents without any explanation as to why.

In its comments to the Office of Open Records Counsel, TCOG wrote:

“First, there is no state law that prohibits citizens from taking pictures of a public record. Second, for a government entity to adopt a policy preventing citizens from taking a picture of public records would be unreasonable even under this draft’s proposed language and is at odds with the (Tennessee Public Records Act) and court decisions regarding access.

“We understand there may be legitimate reasons to prevent a citizens from using a copy machine owned by the requester to make copies of fragile records in a way that might tear or harm the record itself. But we believe that is a separate and narrow reason for not allowing someone to handle a public record. We strongly urge deleting this policy consideration, or narrowing it to a legitimate reason for preventing someone from using a scanner or a device that could harm the record.

We have  yet to hear an argument about how taking a picture of a record could harm a record.”

TCOG representatives and others repeated the request to address photography with then-Open Records Counsel Ann Butterworth during a December meeting of the Advisory Committee on Open Government, emphasizing that no reasonable explanation had been offered for the ban that had started cropping up across the state. However, the Open Records Counsel declined to include any wording in the model policy or in the “Best Practices” addressing these concerns.

Instead, Butterworth included this model language: “D. A requestor will [not] be allowed to make copies of records with personal equipment. [Indicate under what circumstances, if any, the Governmental Entity will permit requestors to make their own copies or provide their own storage devices.]” In the Best Practices document, she said it was up to the custodian whether or not to allow someone to use their phone to take a picture of a public record.

The language in the Comptroller’s policy picks up the “model language”: “A requestor will not be allowed to make copies of records with personal equipment.” The same language was in the TWRA policy.

The TDOT policy says “A requestor shall not be allowed to …. use a personal photocopier, personal computer or other personal equipment of any kind to make photocopies, download electronic or digital records, reproduce computer disks, or otherwise mechanically reproduce any TDOT record; provided, however, that this shall not be construed to prohibit a requestor from making personal notes or manually copying the contents of a TDOT record.

Butterworth earlier this year left the position of Open Records Counsel, which she had been holding along with her position as Assistant to the Comptroller for Public Finance. Lee Pope is the new Open Records Counsel.

One issue brought up was the need to maintain custody of the records, but the representative with TWRA appeared to indicate that someone simply taking a picture of a record would not be the same as allowing someone to take a set of records and put them through their own copy machine.

Video of the meeting can be found here. Bell begins his comments with the Comptroller’s Office at about 1:23 on the video, and goes through similar conversations later with TDOT and TWRA.