Lamar Orr
Farragut, Tennessee 37934
June 23, 2008
Dear Mr. Orr:
You have requested an opinion
from the Office of Open Records that specifically addresses a
Tennessee citizen’s right to inspect public records and how timely
the right to inspect should be in order to be in compliance with the
law. You additionally requested that this Office review the recently
amended section of the Farragut Municipal Code, which deals with a
citizen’s right to inspect and copy public records, and address its
compliance with the Tennessee Public Records Act (hereinafter
referred to as "TPRA"). It is important to note that if
SB3280/HB3637 is signed into law, effective July 1, 2008, the
Tennessee Public Records Act will be significantly amended and as
such, the provisions within the Farragut Municipal Code that address
inspecting and copying public records will also need to be amended.
You represented to this Office that, on multiple occasions, both you and a number of other residents of the Town of Farragut (hereinafter referred to as the "Town") have requested to inspect certain public records, and specifically site plans submitted by the First Baptist Church of Concord to the Town for review. On multiple occasions, their requests were delayed for a week or more, even though the Town had the plans in its possession. On at least one occasion, residents were told the morning they made their initial request that they could inspect previously submitted plans later in the afternoon; but upon returning that afternoon, the residents were told they could not inspect the plans and they were to leave a name and a phone number where they could be reached. The next day, the residents were contacted and told that they would not be able to inspect the records for another eight days. On another occasion, the Associate Town Administrator acknowledged that the plans had been submitted to the Town, but delayed access to the records because it was going to "take some time for the Staff to review them so we won’t have distributable information for a bit." You have attempted on multiple occasions to bring to the attention of the local governing officials the problems with regard to access to the requested public records, but you and others still continue to experience delays in accessing records.
Additionally, on May 22, 2008,
the Board of Mayor and Alderman adopted language that upon becoming
final amends Section 1-307 of the Farragut Municipal Code that
addresses a Tennessee citizen’s right to inspect and copy public
records.
In looking at these issues,
one must begin with the language of the TPRA and any statute that
relates to the TPRA. Note, during the recent legislative session,
the Tennessee General Assembly adopted several changes to the TPRA,
some of which are currently effective and some of which will be
effective July 1, 2008 (assuming SB3280 becomes law); this opinion
answers your questions based upon current law but will indicate when
there are proposed changes in the law that could be effective July
1, 2008.
Tenn. Code Ann. § 10-7-503(a)
says the following:
Except as provided in
§ 10-7-504(f), all state, county and municipal records and
all records maintained by the Tennessee performing arts
center management corporation, except any public documents
authorized to be destroyed by the county public records
commission in accordance with § 10-7-404, shall at all
times, during business hours, be open for personal
inspection by any citizen of Tennessee, and those in charge
of such records shall not refuse such right of inspection to
any citizen, unless otherwise provided by state law.
While the definition of
"public record" is currently not found within the TPRA, Tennessee
Courts have adopted the definition of public records that is found
in Tenn. Code Ann. § 10-7-301(6) which defines public records as:
all documents, papers,
letters, maps, books, photographs, microfilms, electronic
data processing files and output, films, sound recordings,
or other material, regardless of physical form or
characteristics made or received pursuant to law or
ordinance or in connection with the transaction of official
business by any governmental agency.1
Based upon the above cited
statutory provisions, all governmental records regardless of form
that were made or received pursuant to law or ordinance or in
connection with the transaction of government business are to be
open for inspection by any citizen of Tennessee during business
hours, unless state law provides otherwise.
1 If SB3280 is signed into
law, effective July 1, 2008, the TPRA will contain a definition of
"public records" that is identical to the definition found in Tenn.
Code Ann. § 10-7-301(6).
II. Timely Response to
Open Records Request
With regard to the issue of
timely responses to open records requests for either inspection or
copies, Courts look at each situation on a case by case basis. More
often than not, even if the Court finds that an entity should have
provided access to certain records, the Court still allows the
entity time to review the records for any confidential information
that would need to be redacted before providing access. See Eldridge
v. Putnam County, 86 S.W. 3d 572 (Tenn. Ct. App. 2001) and Schneider
v. City of Jackson, 226 S.W. 3d 332, 346 (Tenn. 2007). Additionally,
the Tennessee Attorney General, in looking at Tenn. Code Ann. §
10-7-503(a) and the issue of immediate access recently opined the
following:
A literal construction of this
statute would require the Authority, or any other records custodian,
to make any requested records immediately available for inspection
during normal business hours, regardless of the age, size, and
nature of the records requested. While courts are to construe the
Public Records Act broadly so as to give the fullest possible public
access to public records, they are also bound to interpret statutes
so as not to lead to absurd results in specific factual situations.
Business Brokerage Ctr. v. Dixon, 874 S.W.2d 1, 5 (Tenn. 1994). For
example, where a request requires a review of records for
confidential and privileged information, it would be absurd to
require the governmental agency to make such records immediately
available for inspection. A similar absurd result would follow from
a request for immediate inspection of electronic records that would
require the records custodian to write a new computer program to
extract the requested records. See Tennessean v. Electric Power
Board of Nashville, 979 S.W.2d 297 (Tenn. 1998). Thus, depending
upon the specific facts and circumstances, a court could find an
agency's failure to immediately make records available for public
inspection not to be a denial in whole or in part of the public
records request.
Op. Tenn. Atty. Gen. 08-64
(March 24, 2008).
According to the information
you provided this Office, on multiple occasions the Town has delayed
requests to inspect site plans for extended periods of time. The
Town has not represented that the site plans are exempt from
inspection under the TRPA, because access is granted after varying
periods of time. However, it does appear that the Town believes that
although these records are in its possession when a request is made,
it is allowed to delay public inspection until "Staff" has time to
review the plans. Being unaware of any confidential information that
might be on a site plan that would need to be redacted, it is the
opinion of this Office that a court could construe a delay in access
to site plans in order to allow prior "Staff review" as
unreasonable.
III. Amended Section
1-307 of the Farragut Municipal Code
Farragut Municipal Code
Section II, Part A. Proof of Citizenship says, "The Tennessee Public
Records Act only applies to citizens of Tennessee. A person seeking
2 If SB3280 is signed into
law, a records custodian may require a citizen making a request for
inspection or copies of public records to present photo
identification issued by a governmental entity that contains an
address, if the requestor possesses such identification, and if the
requestor does not possess photo identification, the custo dian may
require other forms of identification.
Access to public records of
the Town must provide proper identification to establish Tennessee
citizenship." The Town should consider being more specific in
establishing what type of identification is "proper" (i.e. photo
identification if available) to establish citizenship. This section
is extremely subjective and could lead to an unnecessary delay in
records being accessed because the requestor fails to provide
identification that is deemed "proper" to establish citizenship by
the records custodian.
Paragraph 8 of Farragut
Municipal Code Section I, Part B. Records Not Open to Public Access
provides for the confidentiality of certain personal information
about Town employees. As the paragraph currently reads, this
information only includes "unpublished telephone numbers, bank
account information, social security number, and driver license
information (unless driving a vehicle is a part of the employee’s
job duties. TCA § 10-7-504(f)(1)" Until May1, 2008, this language
was appropriate. However, on May 1, 2008, the Governor signed into
law Public Chapter Number 853 which amends Tenn. Code Ann. §
10-7-504(f)(1) by making home telephone numbers and personal cell
phone numbers, as well as residential street addresses for any
municipal employee confidential. This section needs to be amended to
encompass the information made confidential by the recently passed
legislation.
Farragut Municipal Code
Section II, Part20D. Limitations on Disclosure of Confidential
Information says in part, "If it is necessary to redact confidential
information from a record, the requestor must pay the Town’s cost
associated with redacting the records as provided in by this
ordinance." According to Tenn. Code Ann. § 10-7-506(a) when a person
has the right to inspect a public record, the person also has the
right to obtain extracts, copies, photographs or photostats thereof
and the records custodian is allowed to charge a fee for "the making
of such extracts, copies, photographs or photostats" so long as
reasonable rules are in place. The plain language of the statute
allows for a fee to be charged for the making of the copy, not for
redacting the copy. Furthermore, the Tennessee Court of Appeals in
Allen v. Day said that records custodians:
do have the clear
obligation to produce…records for inspection, unless
otherwise provided by state law, and to provide a copy or
copies of any such record requested by such citizen, upon
the payment of a reasonable charge or fee therefor.
Allen v. Day, 213 S.W. 3d 244,
249 (Tenn. Ct. App. 2006).
Again, the language of the
Court refers to the cost of producing the copy only. Additionally,
the Tennessee Supreme Court said the following regarding fees in The
Tennessean v. Electric Power Board of Nashville:
We think the language and
meaning of Tenn.Code Ann. § 10-7-506(a) is plain: that an
agency may enforce reasonable rules "governing the making of such
extracts, copies, photographs or photostats." … In contrast, there
is no authority under the Act allowing an agency to establish rules
that would substantially inhibit disclosure of records. Moreover,
limiting an agency to rules that govern only the actual "making" of
the extracts, copies, photographs or photostats is consistent with
the legislative policy in favor of the fullest possible public
access.
The Tennessean v. Electric
Power Board of Nashville, 979 S.W. 2d 297, 304 (Tenn. 1998).
The only statutory provision
making it permissible to charge a requestor for the staff time
associated with redaction is found in Tenn. Code Ann. §
10-7-503(c)(2) which deals with law enforcement personnel records,
and it specifically says the following:
Information made
confidential by this chapter shall be redacted whenever
possible, but the costs associated with redacting records or
information, including the cost of copies and staff time to
provide redacted copies, shall be borne as provided by
current law.
Based upon the above cited
statutory authority and case law, it is this Office’s opinion that
charging a requestor for redacting information is not permissible
under current state law, except when law enforcement personnel
records are the records that have been re quested and require
redaction.
Farragut Municipal Code
Section II, Part E.’s heading reads Costs of Inspection. This
heading is problematic and misleading in and of itself due to the
fact that Tennessee Attorney General has opined that charging a
citizen a fee to inspect public records violates the Tennessee
Public Records Act. See Op.Atty.Gen. No. 01-021, Feb. 8, 2001. While
this section is entitled "Costs of Inspection", it appears to be
addressing the issues that were litigated in the above-cited
Tennessean case. The Tennessean was not merely seeking to inspect
records held by the Electric Power Board of Nashville; it was
seeking an extract of information in a format that the governmental
entity did not maintain.
Additionally, this Office
finds it problematic that a requestor will be charged not only the
hourly pay rate of the employees creating the "’special computer
program", but also the "social security, insurance and other
benefits" of the employees creating the program. First, in looking
at Tenn. Code Ann. § 10-7-506(c)(2) which is the only portion of the
statute that contemplates a requestor being assessed an additional
fee for labor costs, that assessment relates only to the production
of records having commercial value, such as maps or geographical
data. However, the Tennessean opinion does seem to allow the costs
of labor to be assessed in situations where programs have to be
created in order for the requestor to obtain the information in a
format not maintained by the governmental entity. See The Tennessean
v. Electric Power Board of Nashville, 979 S.W. 2d 297, 304 (Tenn.
1998).
3 If SB3280 is signed into
law, record custodians, up until such times as the Office of Open
Records Counsel establishes a schedule of reasonable charges, will
be able to charge a requestor the "actual costs" of producing the
requested material including but not limited to the cost of making
extracts, copies, etc., and the hourly wage of the employee
requesting the information.. The "actual cost" of making the copies
can continue to be assessed as long as there is a reasonable rule in
place for doing so pursuant to Tenn. Code Ann. § 10-7-506(a), but
the "actual cost" of the staff time required to produce the request
cannot be assessed for the first five (5) hours a record custodian
works to produce the requested material. In establishing the
schedule of reasonable charges, the Office of Open Records Counsel,
shall consider population, complexity of request, man hours involved
in retrieving document, redacting document, any other cost involved
in preparing the document, the cost of duplicating the document, the
cost of mailing the document if mailing is required, and any other
cost this Office deems appropriate.
4 This Office acknowledges the
footnote found in Hickman v. Tennessee Board of Probation and Parole
that says, "Obviously, the time and effort involved in making copies
is additional to that required to retrieve files. The copy cost
charged to citizens making a request for access in person, as well
as a citizen making a request by mail, presumably includes this
additional cost." Hickman v. Tennessee Board of Probation and
Parole, 2003 WL 724474 at *11 (Tenn. Ct. App. 2003). However, the
Office is unwilling to say that labor/staff fees can be assessed
against a requestor based upon a footnote in an unpublished opinion.
While respecting the opinion of the Court, the Court itself does not
definitively opine that labor/staff time can be assessed; instead,
the Court says that "presumably" this "additional fee" can be
assessed. Id. Again, when looking at the language of the TPRA,
additional fees that could include labor are only expressly
permitted when certain records having commercial value are being
reproduced. The Office is also aware of a Chancery Court ruling from
Loudon County that upheld a copying policy that charges for the
labor associated with producing requested records. The policy that
was at issue in Loudon County is almost identical to the policy that
was adopted by the Town of Farragut with regard to charging for the
labor associated with producing requested records. Again, while
respecting the Loudon County Chancellor’s ruling, this Office is
compelled to rely upon the opinions issued by the higher courts of
this State as well as
But, even in interpreting the
opinion to allow for labor to be charged in those very specific
situations mentioned above, there is no thing in statute nor case
law that permits the requestor to be assessed a fee that includes
the "social security, insurance and other benefits" of the employees
creating the program.
Farragut Municipal Code
Section III, Part 1(a) Town’s Equipment and Labor Costs says in part
that citizen’s requesting copies of public records will be charged
not only for "ink, toner, paper, copier lease, cost of media
(diskette, cd, dvd, etc.)" but will also be charged for "the time
and labor of Town employees based upon an average hourly rate for
the Town’s clerical employees, including insurance and other
benefits and/or Town’s subcontractor costs." It is the opinion of
this Office that this provision is contrary to both the letter and
spirit of the TPRA. The Tennessee Attorney General’s Office opined
that "custodians of records may charge only as much as reasonably
approximates the actual cost of copying a public record."
Op.Atty.Gen. No. 02-065, May 17, 2002. In the same opinion, when
addressing whether a city could charge more than its actual cost
when copying a public record, the Attorney General said "Absent a
specific statute…a city may not charge a copying fee that is greater
than the actual costs of copying the record." Id. Again, as cited
above, the Tennessee Court of Appeals in Allen v. Day said that a
records custodian was obligated "to provide a copy or copies of any
such record requested by such citizen, upon the payment of a
reasonable charge or fee therefor." It is the opinion of this Office
that this language does not contemplate a requestor being charged
for anything other than the charge of the copy itself. Allen v. Day,
213 S.W. 3d 244, 249 (Tenn. Ct. App. 2006).4
the actually statutory
language adopted by the General Assembly relative to what can be
charged when producing copies. It is important to note that this
Office was unable to discern the basis upon which the Chancellor was
relying in rendering his opinion due to the fact that he cited no
case law or statutory authority when the ruling was made.
As noted above, the only
section of the TPRA that specifically allows for labor costs to be
assessed is found in Tenn. Code Ann. § 10-7-506(c)(1). This
statutory provision is specific to records having commercial value
and the additional fees that may be assessed which include labor
costs must relate to the actual development cost of the information
having the commercial value. Tenn. Code Ann. § 10-7-506(c)(1) says
the following:
(c)(1) If a request is
made for a copy of a public record that has commercial
value, and such request requires the reproduction of all or
a portion of a computer generated map or other similar
geographic data that was developed with public funds, a
state department or agency or a political subdivision of the
state having primary responsibility for the data or system
may establish and impose reasonable=2 0fees for the
reproduction of such record, in addition to any fees or
charges that may lawfully be imposed pursuant to this
section. The additional fees authorized by this subsection
may not be assessed against individuals who request copies
of records for themselves or when the record requested does
not have commercial value. State departments and agencies
and political subdivisions of the state may charge a
reasonable fee (cost of reproduction only) for information
requested by the news media for news gathering purposes
(broadcast or publication).
(2) The additional
fees authorized by this subsection shall relate to the
actual development costs of such maps or geographic data and
may include:
It is the opinion of this
Office that had the General Assembly intended for labor/staff time
to be included when producing all public records, not only those
having commercial value, that authority would have been expressly
granted; however, as the current law stands the express authority to
assess a fee for labor/staff time is specific to records having
commercial value. As such, charging for the staff time that it takes
to produce a public records request seems to violate the TPRA.
With regard to the charge for
redacting, see the above discussion in Section II, Part D.
Limitations on Disclosure of Confidential Information.
Based upon all of the above
cited case law and all of the above cited Attorney General opinions,
it is this Office’s opinion that the Fee Schedule also violates both
the letter and spirit of the current law. The fee schedule provision
is as follows:
Fee Schedule
Seven cents (.7¢) per
page, plus the cost of the Town employee’s time to make the
copies based on the following rate:
7
1 to 6 minutes………...$2.34
7 to 12 minutes……….$4.69
13 to 18 minutes……...$7.02
19 to 24 minutes……....$9.36
25 to 30 minutes……..$11.70
31 to 36 minutes……..$14.04
37 to 42 minutes……..$16.38
43 to 48 minutes……..$18.72
49 to 54 minutes……..$21.06
55 to 60 minutes……..$23.47
Absent some reasonable basis
for assessing requestors these types of fees when it is clear that
the actual cost of the copy is seven cents (.7¢), it is possible
that a Court could interpret this fee schedule as both unreasonable
and a means to "substantially inhibit disclosure of records." The
Tennessean v. Elect ric Power Board of Nashville, 979 S.W. 2d 297,
304 (Tenn. 1998).
Farragut Municipal Code
Section III, Part B. Commercial Equipment requires a requestor who
decides to use commercial equipment to generate copies when the
Town’s equipment is "incapable" of making the requested copies or
"inoperative" to "pay the estimated cost of the copies, plus 50% of
the estimated cost." There is no rationale provided in this
provision to explain why a requestor would be required to pay
approximately one hundred fifty percent of the estimated cost of
producing a record. Again, absent a reasonable basis for assessing
such a charge, it is possible that a Court would look at this
provision as a means used to "substantially inhibit disclosure of
records." The Tennessean v. Electric Power Board of Nashville, 979
S.W. 2d 297, 304 (Tenn. 1998).
IV. Conclusion
Tennessee Courts construe the
Tennessee Public Records Act broadly "so as to give the fullest
possible public access to public records." Tenn. Code Ann. §
10-7-505(d). Governmental entities should also seek to give the
fullest possible access to public records. Absent a clear exception
to the TPRA, any and all "documents, papers, letters, maps, books,
photographs, microfilms, electronic data processing files and
output, films, sound recordings, or other material, regardless of
physical form or characteristics made or received pursuant to law or
ordinance or in connection with the transaction of official business
by any governmental agency" must be open for public inspection and
copying by any Tennessee citizen. Griffin v. City of Knoxville, 821
S.W. 2d. 921, 924 (Tenn. 1991).
Additionally, any rules that are adopted by a governmental entity relative to inspecting and copying public records must be "reasonable" and must not serve as a means to block access to public records. Based upon the representation you made to this Office and after review of the recently amended code section addressing access to public records, it is this Office’s opinion that a Court could find both the practice and policies of the Town of Farragut in violation of the TPRA.
Please feel free to contact
either me or Ann Butterworth upon receipt of this opinion if you
have anything further that you would like to discuss.
Sincerely,
Elisha D. Hodge
Open Records Specialist
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