Many governments have adopted rigid rules for accessing public records

Summary: A 2017-2018 public records policy audit by Tennessee Coalition for Open Government has found that many governmental bodies have adopted rigid rules and hurdles that threaten to slow down or thwart access to public records. Most policies require a driver’s license as a condition for inspecting or getting copies of records, and many prohibit citizens from taking pictures of records. Relatively few have incorporated fee waivers for copies of records in the public interest.

In 2016, Tennessee lawmakers passed a new statute requiring each government entity in the state to establish a written public records policy by July 1, 2017.

The policies were required to include:

• the contact information for making a public records request,
• the process for citizens making requests,
• the process for responding, and
• any fees that might be charged for copies.

The law states that government bodies cannot “impose requirements on those requesting records that are more burdensome than state law.”

Tennessee Coalition for Open Government set out in October 2017 to find out what governing bodies across the state had included in their new policies. TCOG is a nonprofit organization established in 2003 that tracks public records and open meetings issues.

A locked-down culture

As advocates for open government, we had hoped that the policies would make requesting public records easier for citizens.

And indeed, a majority of the policies we examined included the helpful information required by the new law, such as the name and contact information for making public records requests.

But our audit of 306 counties, school districts and cities from October 2017 to March 2018 also revealed that the policies did not necessarily assure easier or more efficient access to public records by citizens. And many policies created new hurdles for citizens with increasing layers of bureaucracy and rules, some of which could conflict with state law.

First, it should be noted that TCOG could not examine policies from 15% percent of the government entities it surveyed. Nine (9) said they would not mail or email a copy and the only way to get one is to appear in person. Four stated that they did not have a policy. Others did not respond or provide a copy within the seven business days allowed under the law after our auditors called and emailed requesting copies. All three of these responses are violations of the Tennessee Public Records Act. Others sent a document that wasn’t a public records policy, pointed an auditor to online information that could not be found, or presented conflicting information.

The remainder (259) either had a public records policy on their website, or provided a copy to our auditors by email or mail within the seven business days allowed by law. Many provided a copy within a few days. Others questioned auditors why they wanted a copy but eventually provided it.

Of the 259 policies examined, many included rules that threaten to slow down or thwart access to public records. Only a minority included measures that would assure that documents in the public interest would be freely available.

For example, most say a Tennessee driver’s license or some other form of government-issued identification is a condition for inspecting or getting copies of public records, though identification documents are not required by state law.

Many prohibit people from taking a picture of public records with their cell phone.

And while one of the biggest barriers for getting copies of public records is the cost, the majority chose against broader provisions to assure that records that are in the public interest are provided free or at low costs to citizens.

The contact information was a positive development. But the new law had specifically required this to be in the policy and not all policies complied.  (When contacts were provided, TCOG collected them and aggregated them here: counties, cities, school districts.)

We should also note that the bureaucratic rules in the policies did not always mirror our experience, which was encouraging. Of the government entities who responded to our requests for policies, some did not require that our auditors provide a Tennessee driver’s license or some other form of identification even when their policy said it was required. This indicates that while governing bodies have largely adopted strict rules, at least some government workers on the front lines were ignoring them and choosing instead to make the process easier and more efficient.

Statistical details of findings, 259 policies examined

In total, of the 306 government entities surveyed, 85% (259 government entities) either provided a public records policy to our auditors or had the policy on its website. The others did not. Of the 259 policies examined:

• • 84% state that a Tennessee driver’s license or some other form of identification must be presented as a condition to inspect or receive copies of public records.

• • 48% specifically prohibit a requestor from using personal equipment to make copies of public records that would save on costs; 41% do not mention use of personal equipment at all. Only 5% allow it. Personal equipment can include a scanner or a cell phone that takes pictures or scans.

• • A majority (59%) declined to include a fee waiver provision if fees fell under a certain amount. Such a waiver is a recommendation by the Office of Open Records Counsel, reasoning that sometimes the clerical time and cost of handling and processing payments (by cash, check or credit card) is higher than the actual fee collected. Of the 41% who included such a provision, the median amount listed in policies under which fees would be waived was $5.

• • An even larger majority (66%) declined to include a fee waiver provision allowing custodians discretion to waive fees for copies of public records in certain situations when records are determined to be in the best interest of the government entity and for the “public good.” Only 33% included such a provision.

• • School districts were the least likely to include fee waiver provisions in their policies. Only 3% of school districts allowed a custodian discretion to waive fees in certain situations; and only 4% of school districts waived fees if they fell under a certain amount.

• • 84% (218 entities) contained the title or name of a contact person for making public records requests and a phone number. 16% (41 entities) did not list a phone number, which would be the most common contact information used by citizens. Many that did not have a phone number instead included only the physical address of the government entity’s office.

• • 50% percent of policies included an email address for making a public records request or for contacting a public records request coordinator. The omission of email addresses is despite a state law that requires that government entities accept requests for public records via email if a government entity uses email to transact business.