Many local governments and state agencies in Tennessee are happy to assist citizens in their requests for public records. We love these custodians who not only recognize the right of citizens to access public records, but believe in its importance and work hard to help you navigate the process!
But that doesn’t mean it’s always easy. You might face a government employee who either doesn’t know the law, doesn’t care, is overworked, or is just having a bad day and finds you annoying. The worst is when you reach someone who doesn’t want you to see something, even though it’s not confidential, and actively makes the process difficult. (We hope these are few and far between in our lovely state of Tennessee.)
So here are some practical tips before you make your request, or if you running into problems:
1. Determine to whom you need to make the request.
Each government entity in Tennessee is required to have a public records policy that outlines the process for making requests, contact information and any fees. Some of those are online; many are not. If you’re not sure who to call, here are links to contact information for making public records requests and some policies:
If you still don’t know who to call, start with the top executive for the government entity. (The police chief’s office, the mayor’s office, the superintendent’s office, etc…) Remember, each entity is supposed to have at least one designated person to handle public records requests.
2. Make your request specific
Keep in mind that a custodian is not required to create a record that doesn’t exist. The more specific you can be, the better. If it’s possible, talk with a records custodian about your request before you make it. That person may be willing to help you clarify your request, particularly if it’s a broad request and you can narrow it down and still get what you want.
For some types of requests, we think it helpful to use the public records request form designed by the Office of Open Records Counsel. You are not required to use this form if you just want to inspect records, but some entities may require it if you are requesting copies.
The Public Records Act provides a statutory right to inspect records, not just to obtain copies. You do not have to make a written request to inspect records, nor can you be charged to inspect records. So don’t be too quick to reject the inspection option, particularly if the responsive records are unfamiliar. It may be that you can understand the information you’re seeking better by inspecting originals before requesting copies. If your request is voluminous, consider asking to inspect a smaller portion of the records to get a better idea of how the records are organized. It will take less time for the government entity to compile the records, and once you see them, it might help you better target your request so that you don’t end up with a lot of records that you did not necessarily want.
4. If you want copies, find out fees ahead of time, and see if you qualify for a waiver.
Under Tennessee law, it is recognized that agencies have a right to charge fees for copies of records. The Office of Open Records Counsel has developed a Schedule of Reasonable Charges as a guide. It says that government entities can charge for labor time spent compiling records, with the first hour being free. The schedule also advises 15 cents per page for a black and white copy, 50 cents for a color copy. It’s important to remember that in Tennessee, fees — labor fees or per-page fees — can only be applied if you get copies.
Make sure that you get a written estimate of all charges before you agree to pay for anything. Also, see if you qualify for a “public good” waiver or other types of waivers. Some entities waive fees if the requested records are in the public interest. Others waive fees under a certain dollar amount, or under a certain page amount.
5. Ask for a written explanation of a denial.
The Tennessee Public Records Act requires agencies to state the basis in writing for any denial of a records request. The denial should include the legal reason for the denial, such as the specific statutory exemption that allows for the record to be confidential. Reminding the agency of that obligation will help to educate new employees who might not be familiar with the law and will show the agency that you’re familiar with your rights and the agency’s obligations. If you think you have been wrongly denied a record, you can contact TCOG or the Office of Open Records Counsel.
6. Ask for a prompt acknowledgement and response.
The Public Records Act requires the agency to make records available to citizens promptly. If that’s not practicable, the law says the agency has seven business days in which to respond to the requester. It’s worth reminding the agency of the “prompt” language in the law. Just because seven days are allowed doesn’t mean a simple request for a readily available document should be delayed. Here’s exactly what the law says:
§T.C.A. 10-7-503 (a)(2)(B): 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:
(i) Make the information available to the requestor;
(ii) Deny the request in writing or by completing a records request response form developed by the office of open records counsel. The response shall include the basis for the denial; or
(iii) Furnish the requestor a completed records request response form developed by the office of open records counsel stating the time reasonably necessary to produce the record or information.
7. Be willing to take one bite at a time.
If you expect the agency will have a lot of responsive records, consider starting with a narrow request and then making follow-up requests. If the first request doesn’t answer your question, you can make a follow-up request. This could speed up the response time and avoid extra work all around.
8. Be willing to negotiate.
Pay careful attention to any explanation given for not fulfilling your request. It might be that the request was phrased in a way that didn’t describe the records the way the agency does. If so, it might help to rephrase your request. The law contains no limit on the number of requests that a person can make. So, if rephrasing a request will help the agency respond more quickly with the needed information, be willing to negotiate and, if necessary, to revise your request.
9. Pay attention to labor fees and don’t be afraid to ask for more explanation.
If you receive an estimate of charges, pay close attention and don’t be afraid to challenge a labor charge if it seems unreasonable. For example, redacting Social Security numbers and home addresses from four job applications shouldn’t take four hours. Be polite, but firm, if you think the agency has “gold-plated” the labor fees. You can contact TCOG if you feel you are being overcharged, or the Office of Open Records Counsel.
10. Don’t give up!
Keep asking for the records even if the agency delays or doesn’t respond. Particularly if you deal with that agency often, a reputation for giving up easily might lead the agency to be even less helpful next time. Also, if agencies learn that requester take their access rights seriously, officials will be encouraged to be more open and accessible. And if that happens, we’re all better off.