Tennessee’s new records law: ‘Net improvement’ but far from perfect

By FRANK GIBSON

Changes the legislature made to the Public Records Act will solve several problems reporters and citizens faced in the past when they asked to see or copy open records.

Some changes will produce immediate and tangible results but are far from perfect.  Others are more nuanced and will take longer.  And, despite an arduous three-year process, some issues remain unresolved. That means we’ll have to continue to look for solutions and opportunities to fix those problems.

The Office of Open Records Counsel and the new Advisory Committee on Open Government provide vehicles to keep the dialogue going so we don’t have to wait so long for improvements.

We had to make compromises along the way, and it will take some time to tell how well things work under a new regime. From the calls we’ve gotten in recent months, my sense is there has been a net improvement.  Some cities have already adopted new records policies in line with the 2008 changes.

It will take more education on all fronts – for those in government, the press and the public.  The OORC had 40 presentations under its belt in the first months of operation.

The Tennessee Press Association, TCOG, the OORC and ACOG need to know about problems you encounter before we can fix them.

OLD PROBLEMS

Before July 1, we had an open records law with three basic provisions with one major omission. On paper it seemed simple, but in practice it was vague, complicated and wanting.

The law didn’t include a definition of public records.  Fearful and hesitant public officials and employees would demand that reporters “show me where the law says that I have to show you that.”  That was impossible because the law isn’t structured that way.

The law said records were open for inspection during regular business hours unless “otherwise provided by state law.” “Otherwise” refers to more than 250 exemptions, spread throughout volumes of state and federal law, rules and regulations informally approved by the legislature and the courts, and something vaguely referenced as “common law.”

You had a right to get copies of anything you had a right to see.

And, the government had a right to make “reasonable rules” on providing those copies.

In reality, people were told to go away, schedule an appointment, or that they had to put their request in writing.

Some cities and counties were passing ordinances that said citizens must pay for a public employee’s time to see routine and readily accessible records.

The only way to challenge actions unauthorized by the legislature was to go to court.  In Memphis, reporters’ requests were ignored for weeks and months until a backlog of unfilled requests forced the Commercial-Appeal to sue.  It took seven months for the newspaper to get a set of records the FBI got on computer disks almost immediately.

Record custodians could refuse to give a reason for denying a request or for removing allegedly “personal” information. The law said “unless otherwise provided by law,” but the law didn’t require the city to cite an exemption or explain their actions until they got before a judge. There were cases where records got turned over an hour before a scheduled hearing in court.

The legislature had never defined “reasonable rules” so some agencies used that vague language to control every part of the process.

“Reasonable rules” was used by a public utility to charge $95,000 to notify its customers that a newspaper had asked for their address and phone number.  The state Supreme Court later ruled that out of bounds.

Years later, the same utility was demanding $1.50 a page for copies of 2,500 tree-trimming complaints or $38 an hour for an employee to pull out of a computer so a reporter could simply “inspect” them. Six blocks away, the state Administrative Office of the Courts was charging 7 cents a page.

The utility’s lawyer proudly told a legislative committee “we’re not in the public records business.”

NO GOOD CHOICES

Citizens and the news media often paid excessive fees because it was cheaper than calling in a lawyer.  Fees were just low enough to make a lawsuit not worthwhile.  Anyone could sue but the risk losing was great. A judge was not likely to define “reasonable” if the legislature hadn’t seen fit to do so.

You could only sue in Chancery Court and crowded court dockets could delay the critical first hearing for weeks.

A third option was drop the story.  That happened in the tree-trimming example because the story was not worth $8,400, even though the utility was obviously ignoring the law.

When someone asked to see a record with a piece of confidential information, custodians would copy the original, redact the information, and charge for copies that not been requested.

In some large volume requests, custodians would try to charge 25 to 50 cents a page for hundreds of paper copies when the information was available on an inexpensive CD.

The missing ingredient in simple disputes was an independent third party – someone besides a judge — to tell custodians and citizens what the law said.

There was no list of exemptions to check whether something was open or closed.  A media attorney and I were asked hundreds of times whether a particular record was open. It happened so often that the Tennessee Coalition for Open Government had to post an unofficial list of exemptions on www.tcog.info. You can find it on “The Law” page.

An overall problem was the lack of any process for record custodians and citizens to follow and the absence of any independent oversight.  The OORC gives some of that now.

CHANGES TO THE LAW

  • To fix the biggest omission the legislature added a definition of public record to include anything “made or received pursuant to law or ordinance or in connection with the transaction of official business.” And to ensure understand that it covered electronic records, the definition says “regardless of physical form.”
  • It retained the “open for inspection” during business hours language but added a requirement that the custodian “shall promptly make available for inspection.”  That should apply to records that are handy, where little effort is required.
  • Recognizing that more complex requests might take more time, the law now requires that within seven business days a record custodian must (1) grant the request, (2) deny the request but cite a specific legal exemption, including the basis for redacting certain information, and (3) explain in writing why it will take more than seven days to produce records.  Forms and instructions are at www.comptroller.state.tn.us/openrecords/forms.htm.  State and local agencies can use them as templates.
  • Failure to do any of the three “shalls” constitutes a denial and the requestor can choose between Circuit Court and Chancery to expedite judicial review.  He can still ask the OORC for help.
  • The statute makes it clear an agency cannot charge to inspect a public record, even if redaction is required. That is reinforced by instructions and forms on the OORC web site.
  • We were unsuccessful in getting the “citizen of Tennessee” limitation removed, so a custodian can require a photo ID before allowing you to inspect a record.
  • The statute creates the OORC in the state Comptroller’s Office and authorizes it to (1) “informally mediate and assist with resolution of disputes,” (2) answer questions, and (3) issue informal advisory opinions “as expeditiously as possible” to the public, the media, and officials. Call Ann Butterworth/Elisha Hodge at: 615-401-7891 (toll free at 866-831-3750) or e-mail open.records@state.tn.us.
  • The law specifies custodians cannot require requests to examine records to be in writing, but they can require written requests for copies or on a form.
  • The law – and supporting OORC guidelines — does not require any charges for copies beyond those already in effect for some documents.  It allows copy charges and labor charges above the first hour, but recommends they be in a written policy adopted by the local governing authority. Citizens and journalists should keep up with local developments to ensure local officials don’t exceed state standards and adopt onerous rules.
  • OORC guidelines recommend 15 cents per page for hard copies (30 cents for duplex). “Actual cost” above that level must be documented. Some cities have already adopted the OORC standard:  Brentwood abandoned its $5-10 flat fees for offense and accident reports and is considering putting more of them online. Nashville allows the use of personal scanners.
  • To encourage everyone to adopt reasonable policies, the law provides some legal protection under a “safe harbor” policy that provides: “Fees are presumed to be reasonable when done in accordance with policies and guidelines developed by OORC and adopted by local governing authority.”
  • To collect legal fees in the past, you had to establish that an adverse action was a “willful or knowing” intent to deny access.  That seldom happened, but the statute now says a court may consider whether the custodian followed OORC guidelines.


NUANCES and ‘GUIDELINES’

The legislature mandated the Office of Open Records Counsel, working with the new Advisory Committee on Open Government, to produce a schedule of reasonable charges for copies, a policy on frequent and multiple requests for copies, and a “safe harbor policy for a records custodian who adheres to such policies and guidelines established” by the OORC.

On the initiative of OORC director Ann Butterworth and Open Records Specialist Elisha Hodge, the OORC and ACOG established “Best Practices Guidelines” which are suggestions for responding to requests.

Since the suggestions are coming from an office under the Comptroller of the Treasury, the agency charged with auditing almost every public agency in the state, the power of suggestion may be stronger than otherwise.

ACOG includes representatives from TPA, the Tennessee Association of Broadcasters, TCOG, Common Cause of Tennessee, the League of Women Voters, the Tennessee Municipal League, the County Officials Association, public hospitals, the General Assembly and the state Attorney General.

Here are some highlights of those guidelines.

  • The first item under Best Practices is the gentle reminder that T.C.A. 10-7-505(d) says the TPRA “shall be broadly construed so as to give the fullest possible access to public records.”  That’s Tennessee’s presumption of openness.
  • It reminds public officials, attorneys and employees that the legislature made the OORC responsible for setting standards and that some official actions can now be measured and weighed against those guidelines.
  • The guidelines mention that while governing authorities have the power to establish fees, they can also allow waivers and reductions of those fees.  The Schedule of Fees states clearly that “excessive fees and other rules shall not be used to hinder access.”
  • The statute says the Advisory Committee, with assistance of the OORC staff, “may review and provide written comments on any proposed legislation regarding” the open meetings and open records laws.  That means the OORC will be tracking bills, but perhaps more significantly, the opportunity for ACOG members to comment on legislation could help slow down the rate of adding new exemptions.
  • We were not able to deal head on with some of the issues involving access to electronic records, but we made some progress in the guidelines and Best Practices.  A records custodian has discretion to deliver records electronically, but to encourage more electronic delivery the Schedule says custodians “shall utilize the most cost efficient method of producing” and time-efficient.
  • Nashville’s new open records rule says custodians “shall give the requester the option of receiving information in any format in which it is maintained, including electronic format.”
  • If a local agency adopts a written policy allowing labor charges, it can charge only “base salary” (no benefits) after the first hour spent locating, retrieving, reviewing and redacting, and reproducing” requested records. It recommends using the lowest paid person in the department.
  • Agencies can aggregate charges for multiple requests for copies, but that applies only when the number of requests exceeds four (4) per month.  To help ensure beat reporters and news organizations are not penalized, the policy does not apply to requests for items “routinely released and readily accessible” – agendas, minutes and such.  City councils, county commissions and other governing bodies can adopt higher thresholds.
  • An agency can aggregate by group “if the custodian reasonably believes an individual to be acting in concert with or as an agent of another person, entity, or organization,” but to discourage abuse of the group aggregation concept, custodians must inform requesters they plan to aggregate and advise them they have a right to appeal to the OORC. Custodians also must file a “Notice of Aggregation of Multiple Requestors” with the OORC before they implement that policy.
  • One amendment to the statute requires the OORC and other agencies to provide training on the “sunshine” (meetings) law and requires the OORC to collect data on meetings.  That is data we assume would be reported to the legislature and governor in the OORC and ACOG annual reports mandated by the statute.


Frank Gibson is executive director of the Tennessee Coalition for Open Government and FOI coordinator for the Tennessee Press Association.  He can be reached at fgibson@tcog.info or by calling 615-202-2685.

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