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Text of Document: May 27, 1996
Honorable John H. Duncan, Jr.
Congress of the United States
House of Representatives
Washington, D.C. 20515-4202
Dear Congressman Duncan:
You have asked me to respond to a letter from a citizen in which the citizen charges that a certain resolution of the local utilities board is a violation of both the U.S. and Tennessee Constitutions and of the Tennessee Open Records Law contained in Tennessee Code Annotated, section 10-7-503.
The resolution in question governs access to, and copying of, records of the utilities board. Section 2 of the resolution also provides for fees for the inspection and copying of records. If I read the citizen's letter correctly, it is Section 2 with which he is principally concerned.
Citizen's U.S. and Tennessee Constitutional Concerns.
I know of no provision of the Tennessee or U.S. Constitutions the resolution violates.
Citizen's Tennessee Open Records Law Concerns.
I see nothing wrong on the face of Section 1 of the resolution. However, the application of various provisions of that section could result in a violation of the Tennessee Open Records Law. In addition, Section 2 may on its face, and could in its application, violate the Tennessee Open Records Law.
Tennessee Code Annotated, section 10-7-503 provides that:
All state, county and municipal records ... except any public documents authorized to be destroyed by the county public records commission in accordance with section 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. [Emphasis is mine.]
Tennessee Code Annotated, section 10-7-505 provides that:
Any citizen of Tennessee who shall request the right of personal inspection of any state, county or municipal record as provided in section 10-7-503, and whose request has been in whole or in part denied by the official and/or designee of the official or through any act or regulation of any official or designee of any official shall be entitled to petition for access to any such record and to obtain judicial review of the actions taken to deny the access. [Emphasis is mine.]
Tennessee Code Annotated, section 10-7-506(a) also provides that:
In all cases where any person has the right to inspect any such public records, such person shall have the right to take extracts or make copies thereof, and to make photographs or photostats of the same while such records are in the possession, custody and control of the lawful custodian thereof or such custodian's authorized deputy; provided, the lawful custodian of such records shall have the right to adopt and enforce reasonable rules governing the making of such extracts, copies, photographs or photostats. [Emphasis is mine.]
The Tennessee courts have liberally interpreted the Open Records Law in favor of public access to public records. [For recent cases see Memphis Publishing Co. v. Holt, 710 S.W.2d 513 (Tenn. 1986); Griffin v. City of Knoxville, 821 S.W.2d 921 (Tenn. 1991); Creative Restaurants v. City of Memphis, 795 S.W.2d 672 (Tenn. Ct. App. 1990); Memphis Publishing Co. v. City of Memphis, filed Feb. 22, 1994 (Tenn. 1994).] Under that Law citizens of Tennessee have an extremely broad right to view and to copy public records, but the government has a right to adopt reasonable rules and regulations governing the making of copies of such records. In addition, section 9a of the local city charter also gives the utilities board "all other powers incidental to the operation of a utilities system, not in conflict with applicable law or directions of the City Council." Finally, because municipalities inherently generate and keep records of which they are necessarily the custodians, they undoubtedly have implied powers to regulate the preservation of such records. For those reasons, the utilities board undoubtedly has incidental and implied powers to establish reasonable regulations respecting access to, and the protection and preservation of, its records. However, those rules must be consistent with the Tennessee Open Records Law.
Here we need to look more closely at Tennessee Code Annotated, section 10-7-506(a) regarding a Tennessee citizen's right to copy state, county and municipal records. The Tennessee Attorney General has several times opined that this statute imposes no obligation on those governments to makes copies of their records, only that they be made available for copying. [OAG No. 21, dated July 25, 1974; OAG No. 137, dated September 19, 1980; OAG No. 83-002; OAG No. 92-63.] He has also opined an equal number of times that if a government makes a copy of its records upon request, it can charge a reasonable fee to cover the costs of doing so.
While Tennessee Attorney General's Opinions are advisory and do not have the force of law, most of the time they are very well-reasoned. However, I think they may construe the Tennessee Open Records Law too narrowly on that point. I am not sure the courts would read Tennessee Code Annotated, section 10-7-506(a) to require a municipality to buy a copy machine for the purpose of fulfilling requests for copies of records, but today there can be few state, county and municipal governments that do not have such machines. In the face of that reality and of the liberal interpretation the courts have given the Tennessee Open Records Law, I can envision the courts putting the burden on those governments to provide copies of their records. But I think the above opinions are correct with respect to the question of whether a municipality can charge a reasonable fee for copies or copying as a "reasonable rule governing the making of such extracts, copies, photographs or photostats" under Tennessee Code Annotated, section 10-7-506(a).
Even if the Tennessee Attorney General is correct in opining the government only need make its records available for copying, from a logistical standpoint it is far more sensible for a municipality to provide copies of its records than to simply make them available for copying. In the latter case, it must permit the person who wants a copy of public records to import his own copying or photographic equipment if he wishes to do so.
Analysis of Section 1 of the Resolution.
Section 1 contains a number of provisions governing access to the utilities board's records. All those provisions appear to me on their faces to reasonably advance the interest of the utilities board in protecting and preserving its records within the limits of the Tennessee Open Records Law. Several of the provisions are capable of being applied in a manner that would violate the Tennessee Open Records Law, but if the policy of the Tennessee Open Records Law, which is also reflected in Section 1, is kept in mind by the utilities board employees that should not become a problem.
Paragraph A merely provides that the utilities board will provide such records in a "timely and efficient manner to persons who request access to public records." That statement of policy is entirely consistent with the Tennessee Open Records Law.
Paragraph B provides that "Employees of [the utilities board] shall protect the integrity and organization of public records....," and that "All inspections or copying of records shall be performed by, or under the supervision of, employees of the utilities board."
The second clause in the context of the whole paragraph apparently means that when a request for records is made to the utilities board employees, they have the option of:
1. Themselves retrieving from the utilities board the records requested and giving them to the person making the request.
2. Permitting the person making the request to retrieve those records from the utilities board's files, under their supervision.
Presumably, which option utilities board employees exercise would depend upon a number of circumstances, perhaps including the nature, volume and location of records, other priorities, and utilities board personnel available to address the request.
Tennessee Code Annotated, section 10-7-503 provides that "All state, county and municipal records ... shall at all times, during business hours, be open for personal inspection ... and those in charge of such records shall not refuse such right of inspection to any citizen ...." Unfortunately, neither that statute nor any cases interpreting the Tennessee Open Records Law have addressed the question of whether the person requesting the records is himself entitled to go into the government's filing cabinets, desks and other records storage places, for the purpose of finding a specific record, or for going on a fishing expedition. While I do not think the court would read Tennessee Code Annotated, section 10-7-503 that far, the statute is so broad it would probably be a wise policy for utilities board employees to permit citizens requesting records on a subject to look at the contents of the entire file or files on that subject.
Paragraph C provides that utilities board employees "shall prevent excessive disruption of essential functions and duties and shall seek to provide access to records at the earliest possible times."
This rule does a good job of trying to balance the competing policy interests of the utilities board in doing its job of providing utilities and in complying with the Tennessee Open Records Law. But the application of such rules can also be applied to deny or delay access to records. Where that occurs it is a violation of the Tennessee Open Records Law. Tennessee Code Annotated, section 10-7-503 appears to generally contemplate the right of public inspection of records at the time the request for inspection is made: "All ...records shall at all times during business hours, be open for personal inspection...." Obviously, it will not be possible for the utilities board in every case to permit such inspection at the time the request is made; other priorities might sometimes take precedence over requests for records, the records may be in storage or otherwise not easily accessible, adequate supervision may not be available, etc. But if a high percentage of requests to inspect records are delayed, that is probably a strong indication that the rule is being misapplied.
Paragraph D provides that requests for inspection and copying shall be made in writing by the person requesting the record, on a form provided by utilities board for that purpose, and that reasonable identification may be demanded of such persons.
The requirement for identification is supported by the limitation of the statutory entitlement under Tennessee Code Annotated, section 10-7-503 to "any citizen" of Tennessee. However, the imposition of any individual or collective identification requirement going beyond that reasonably required to establish Tennessee citizenship would probably be excessive.
In addition, Paragraph D could be used to restrict requests for records to exquisitely identifiable records. However, in some cases the person seeking to inspect records on a particular subject may not know precisely what records on that the subject the utilities board holds, or which of those records he wants. The Tennessee courts have held that what constitutes a record is based on a "totality of circumstances," but have not yet spoken on the question of how specific requests for records are required to be. The answer to that question may also turn upon a totality of circumstances. Fishing expeditions, at least to some extent (even if they do not involve the actual intrusion into the places where records are kept by the person seeking the records), might be permitted under the Tennessee Open Records Law. For those reasons, the utilities board should probably on its own initiative disclose all records related to a request, even if they have not been specifically requested.
Paragraph E provides that the hours for making requests for inspection or copying of records shall be the regular office hours of the utilities board.
This rule is the counterpart of the same rule in Tennessee Code Annotated, section 10-7-503.
Paragraph F provides that removal of records for utilities board offices will not be permitted.
This rule is consistent with the limitation contained in Tennessee Code Annotated, section 10-7-506, that records must be made available for copying "while such records are in the possession, custody and control of the lawful custodian thereof or such custodian's authorized deputy." The obvious implication of that limitation is that it also applies to the inspection of records.
Paragraph G provides when in the judgment of utilities board personnel records would be damaged by reproduction, no reproduction will be made.
This rule also advances the interest of the utilities board in protecting its records from destruction. However, there can be few utilities board records that fall into that category. Even if the Tennessee Attorney General's opinions that the government is not required to provide copies of records to persons (which, as I have indicated above, may be a too narrow reading of the Tennessee Open Records Law), where a government has a policy to provide copies of records, it cannot use that policy to deny persons copies of records.
Analysis of Section 2 of the Resolution.
Section 2 of the resolution provides for:
1. $.25 per page for each photostatic copy provided by utilities board.
2. Actual personnel costs related to time spent retrieving and accessing records based upon each involved employee's effective hourly rate of pay, including benefits.
3. Actual personnel costs related to time spent supervising inspection or reproduction of records based upon each involved employee's effective hourly rate of pay, including benefits.
Here is how I see the legal soundness of those fees:
1. The utilities board could successfully defend.
2. The utilities board could not successfully defend.
3. The utilities board might be able to successfully defend the fees relative to time spent supervising the reproduction of records, but could not successfully defend the fees relative to the time spent supervising inspection of records.
It appears to me that with respect to the authority of the government to charge fees, the Tennessee Open Records Law speaks of two classes of records:
1. Records to which only access and inspection is requested.
2. Records for which copying (or copies) are requested.
Tennessee Code Annotated, section 10-7-503 mandates that state, county and municipal records be open to the public; it contains no express or implied authority to charge fees for access to, and inspection of, such records.
The first mention of fees under the Tennessee Open Records Law appears in Tennessee Code Annotated, section 10-7-506(c). That statute provides that with respect to requests for copies of records having commercial value:
the legislative body of any county to which this subsection applies may establish and impose reasonable fees for the reproduction of such records, in addition to any fees or charges that may lawfully be imposed pursuant to this section. [Emphasis is mine.]
The same subsection continues by defining what "additional fees" may be charged under that subsection. But Subsection (c) applies only to counties having a population of 300,000--480,000 according to the 1980 or later federal census. Obviously the city in question is neither a county nor fits in that population category.
No other fees are expressly authorized to be charged in Tennessee Code Annotated, section 10-7-506. However, by speaking in two places about "additional fees" authorized by this section, that statute clearly implies that among the "reasonable rules" authorized to be adopted by governments is a reasonable fee system for copies. But Tennessee Code Annotated, section 10-7-506 in general, and Tennessee Code Annotated, section 10-7-506(a) in particular, deal only with charges related to the copying or copies of records.
The second and only other mention of fees authorized to be charged under the Tennessee Open Records Law is in Tennessee Code Annotated, section 10-7-507. That statute authorizes a "reasonable charge or fee" for a "copy or copies" of traffic violation conviction records.
The fact that the Tennessee General Assembly in the Tennessee Open Records Law expressly authorized the charging of fees for (1) copies of records of commercial value, and (2) for copies of traffic conviction records, impliedly authorized the charging of fees for copies of records as a part of “reasonable rules governing the making of such extracts, copies, photographs or photostats,” and made no express or implied provision for the charging of fees for the inspection of records, appears to express its intent that the charging of such fees was to be limited to copying or copies.
In addition, as pointed out several times above, the Tennessee courts have repeatedly said that the Tennessee Open Records Law is to be broadly interpreted in favor of access to records of the government, and Tennessee Code Annotated, section 10-7-505 clearly says that where access is denied "through any act or regulation of any official or designee of any official" the person denied access is entitled to judicial relief. Onerous charges for copying or copies of records probably function as a denial of access by act or regulation.
Please let me know if I can help you further in this or any other matter.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/ |