Reviewed Date: 03/22/2013
In Tenn. Code Ann. Section 10-7-505(d), the Tennessee General Assembly declares that the Tennessee Public Records Act (hereinafter "TPRA") "shall be broadly construed so as to give the fullest possible access to public records." Courts in Tennessee have opined that unless there is a clear exception provided in law, all records of a governmental entity are to be open to citizens for inspection and/or copying. However, these Courts have also acknowledged the ability of records custodians to adopt reasonable rules governing the manner in which records request are to be made and fulfilled.
In an effort to provide records custodians with a resource that can be utilized when responding to public records request made pursuant to the TPRA, the Office of Open Records Counsel (hereinafter "OORC") in conjunction with the Advisory Committee on Open Government (hereinafter "ACOG") has developed "Best Practices Guidelines for Records Custodians Responding to Requests for Public Records." Records custodians must follow the provisions of the TPRA. The guidelines serve as a resource for records custodians, but records custodians are not required to adhere to the guidelines. However, a Court may consider these guidelines in determining whether action by a records custodian is willful [Tenn. Code Ann. Section 10-7-505(g)]. These guidelines will be reviewed at least annually by the OORC.
Records custodian: the office, official or employee lawfully responsible for the direct custody and care of a public record and is not necessarily the original preparer or producer of the record. A governmental entity may have more than one records custodian.
Public records: defined in Tenn. Code Ann. Section 10-7-503(a)(1): As used in this part and Title 8, Chapter 4, Part 6, "public record or records" or "state record or records" means 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.
Redacted record: a public record otherwise open for public inspection from which protected information has been removed or made obscured prior to release or inspection.
Requestor: a Tennessee citizen requesting access to or a copy of a public record.
Governmental entity or agency: this includes but is not limited to the state, any political subdivision, agency, institution, county, municipality, city or sub-entity. Note, certain associations, non-profits, and private entities are also subject to the TPRA.
Best Practices Guidelines (2013):
1. To the extent possible, a governmental entity should have a written public records policy properly adopted by the appropriate governing authority. The policy should be applied consistently throughout the various offices, departments, or divisions within a governmental entity; however, when a particular office, department or division has a need for a policy that is distinct from that of the entire governmental entity, a separate policy should be adopted. The policy should include:
a. the process for making requests to inspect public records and/or to receive copies of public records (including whether government issued photo ID's are required and whether written requests for copies are required);
b. the process for responding to requests (including the use of required forms); and
c. whether and when fees will be charged for copies of public records (including establishment of charges pursuant to the Schedule of Reasonable Charges).
The policy should balance the governmental entity's need to function efficiently and to maintain the integrity of records with the public's right to access records pursuant to the TPRA.
2. Whenever possible, one person within each governmental office, department, or division should be designated as the public records request coordinator. This person will ensure that requests made pursuant to the TPRA are routed to the appropriate records custodian and that requests are fulfilled in a timely manner. It is suggested that this individual be knowledgeable about the TPRA, as well as the records management system being utilized and any written public records policy that has been adopted.
3. A records custodian should make requested records available as promptly as possible in accordance with Tenn. Code Ann. Section 10-7-503.
4. A records custodian should strive to respond to all records requests in the most economical and efficient manner possible. For example, when labor charges are going to be assessed, qualified staff persons with the lowest hourly wage should be utilized to produce the requested records.
5. To the extent possible, when records are maintained electronically, records custodians should produce records request electronically. Records should be produced electronically whenever feasible as a means of utilizing the most "economical and efficient method of producing" records.
6. If a governmental entity maintains a website, records custodians should post as many records, and particularly records such as agendas and minutes from meetings, on the website whenever it is possible to do so. A records custodian Best Practices may direct a requestor to the website for requested records. However, a requestor may still exercise the right to inspect the public record during regular business hours in the office of the records custodian and/or to receive a copy or duplicate made by the records custodian.
7. Whenever possible and especially in situations where redaction is necessary, once a records request has been completed and there is a reasonable expectation that the same records will be requested in the future, a records custodian should maintain a copy of the redacted records so that any future request can be easily located and copied.
8. When a records custodian receives a records request for a large volume of records and reasonably determines that production of the records should be segmented, the requestor should be notified that the production of the records will be insegments and that a records production schedule will be provided as expeditiously as possible.
9. If a records request is made to a records custodian who is not the appropriate custodian of the requested records, the records custodian when denying the request should make the requestor aware of the appropriate records custodian (if known) whenever possible. However, it should be noted that the statutory time frame for responding to the request is not triggered until the request is made by the requestor to the appropriate records custodian.
10. If a records custodian has provided what is thought to be all records responsive to a public records request and then discovers that records were omitted, the requestor should be made aware of the omission and the records produced as quickly as practicable.
11. Whenever a record is redacted, a records custodian should provide the requestor with the basis for redaction when the redacted records are provided to the requestor. A records custodian is not required however to produce a privilege log.
12. Whenever possible, a records custodian should have a designated supervised space available during normal business hours where requestors can inspect public records.
13. To the extent a records custodian does not have the ability to make copies or duplicates of a requested record, a records custodian should notify the requestor of such and identify the vendor that will be used to produce the requested records, as well as the estimated cost. The inability of a records custodian to internally produce a duplicate or copy of a record does not eliminate the obligation to provide a duplicate or copy if requested.
14. When a records custodian is unclear as to the records that are being requested, it is suggested that the custodian contact the requestor in an effort to clarify and/or Best Practices Guidelines narrow the request. If, after attempting to clarify the request, the records custodian is still unable to determine what is being requested, the request should be denied based upon the requestor's failure to sufficiently identify the requested records in accordance with the requirements of the TPRA.
15. For purposes of developing a policy that authorizes the assessment of fees, including charging for labor, it is suggested that a governmental entity consider the following:
a. whether waivers or reduction of charges will be permitted, based on:
(1) number of copies or minimum charge amount; or
(2) type of record: whether the requested document is a document that is produced on a regular basis, requested on a regular basis and is easily accessible (i.e. records that are routinely released and readily accessible, such as agendas for current calendar month meetings and approved minutes from meetings held in the previous calendar month); and
b. whether the administrative cost of documenting fees and processing the payment (including internal controls) exceeds the cost of copying and labor.
16. Whenever possible, a records custodian should require and receive either full or partial payment of the estimated charges prior to production of copies of the requested records.
17. If a records custodian is going to segment the production of requested records, the requirement for payment prior to the production of the records also should be segmented.
18. When a governmental entity has the ability to accept multiple forms of payments, that could include cash, checks, credit or debit cards, and money orders, it is suggested that the governmental entity permit such forms of payment for copies of public records.
19. A records custodian must provide requestors with an estimate of the charges to be assessed for copies and labor. Whenever possible, a records custodian should provide the estimate prior to producing the requested copies of records and should itemize the estimate.
20. State records custodians who have questions about how to respond to a records request should contact the Office of Attorney General and Reporter. All other records custodians who have questions about how to respond to a records request should contact the Office of Open Records Counsel.
Revised January 2013