Tennessee law makes it clear that citizens have a right to copies of public records, and the government has the right to collect copy fees under “reasonable rules.”
The rule has been simple for a vast majority of public officials. They charge no more than a nominal fee because they know that providing information is essential to representative government and is their duty. Unfortunately, some don’t share that basic democratic value.
The new Office of Open Records Counsel has adopted a Schedule of Reasonable Charges to be used as a guideline. “Reasonable rules” had never been defined, so no one knew what was permissible. That allowed uncooperative officials to misinterpret the law. Some had begun charging citizens to “inspect” records — a practice clearly forbidden by law.
High fees have discouraged the public and the press from asking for copies, but charges have seldom been outrageous enough to make it worth challenging in court — the only available recourse. One Nashville agency has charged as much as $1.50 a page, while a few blocks away another agency charged 9 cents.
The OORC recommended a 15-cent per page fee for copies, which means that Nashville agency would now have to prove its actual cost instead of arbitrarily charging $1.50.
A more controversial OORC recommendation will allow officials to charge labor costs after the first hour an employee spends producing records.
Good-government groups, including Common Cause, the League of Women Voters and the Tennessee Coalition for Open Government, and media organizations pushed unsuccessfully for a two-hour threshold. We feared a lower threshold would help uncooperative officials deny access, drag out requests, and generate revenue on information the public already pays to collect and maintain.
Local implementation is key
Of serious concern now is a policy the OORC is considering to allow officials to “aggregate” labor charges above an as-yet-undetermined monthly threshold, if they believe “the requestor to be acting in concert with or as the agent of another person, entity or organization.” We fear it will be used against citizen groups and curtail investigative reporting by the news media.
The fairness of the already-adopted guideline depends on whether local officials use it to discourage requests or to continue the spirit of openness.
The schedule provides other guidance. It notes there’s no requirement that any fee be imposed. Officials can charge less than the schedule recommends, but they must document “actual costs” if they propose higher fees. A “governing authority” can waive or reduce fees.
The schedule states that officials “shall utilize the most cost-efficient method” of producing records, gives them discretion to deliver records electronically, and makes it clear that “excessive fees and other rules shall not be used to hinder access.”
Residents and news organizations will have to be on guard now to ensure the rules are, indeed, reasonable and that they protect the spirit of open government.
Frank Gibson is executive director of the Tennessee Coalition for Open Government. Reach him at firstname.lastname@example.org.