Tennessee may become the latest state to start charging a fee for the time it takes to fulfill a public records request, a practice that's emerging in some states and one that opponents say simply aims to discourage requests.
This fall, the Tennessee Office of Open Record Counsel will conduct several public hearings on charging a fee for the search and retrieval of public records. While the state can already charge for copies of public records, inspection is generally free. But earlier this year, the state’s School Board Association pushed legislation proposing an hourly labor charge for public records request (with no charge for the first hour of labor). The legislation, which was tabled until next year, also stipulated that the first 25 copies would be free.
The Tennessee Coalition for Open Government and the state press association vehemently opposed the legislation. After the bill died, the Office of Open Record Counsel said it would research the issue and make recommendations for the next legislative session. Two editorials this week in major state newspapers (the Knoxville News Sentinel and the Tennessean) panned the proposed fees as a deterrent to open government. Citizens “should have as broad, open and free (or affordable) access as possible to the documents that tell our state how government operates,” said the Tennessean, “not just for the sake of information and education, but also to hold officials accountable.”
Charging a fee for producing a public record isn’t common and the practice varies across the country. Rhode Island charges a $15-per-hour search and retrieval fee after the first hour while Colorado charges a $30-per-hour one. A West Virginia Supreme Court ruling in 2014 allowed public bodies in that state to charge for search and retrieval until the state legislature banned such fees during the 2015 legislative session. Alaska charges search fees for certain kinds of records and Arkansas charges for producing a driving service record, according to LaVita Tuff, a Sunlight Foundation policy analyst.
“For us, charging for search fees is an issue because it’s going to really serve as a deterrent for people requesting records,” Tuff said, adding that she's seen some cases where state organizations charged citizens more than $10,000. “You can’t guarantee it's going to be a reasonable fee.”
But for school boards and departments of education in particular, fulfilling public records requests can be extremely time-intensive because of the sensitive student information that needs to be redacted from them. Most requests don’t take that long -- something like pulling meeting minutes or requesting access to a budget would likely still be free, said Lee Harrell, Tennessee School Boards Association’s director of government operations. But some requests have been extremely time consuming -- taking up to 80 hours to fulfill -- and can be a drain on small offices with only a few workers.
“Our goal is to find that happy balance to ensure government transparency while also ensuring taxpayer dollars aren’t paying for an office being basically shut down while it’s handling this kind of request,” Harrell said.
But some aren’t buying that the fees will be reasonable, noting that an experience from the Tennessean a few years ago offers a glimpse into the future. When a filer requests copies of a public record in Tennessee, current law does allow the state to include labor costs in that charge if the agency chooses. The paper had asked for records of children who had died after being brought to the attention of the Department of Children’s Services (DCS). The state said the cost of copies would be more than $55,000 -- that included the expense of employees transporting files to and from all of the DCS offices around the state to Nashville for redacting and copying.
Still the school board association and the sponsors of the tabled legislation say the proposed bill was just a starting point and that they want to develop a system with the help of open government advocates.
“We knew it wasn’t perfect, but it was to get the conversation rolling,” Harrell said. “We hope to have some of those collaborative conversations this fall.”