East Tennessee Society of Professional Journalists

Update 9/3/08

The East Tennessee Society of Professional Journalists is working hard to make sure your right to public records access is not impeded. In advance of a Sept. 4 hearing in Nashville on a new open records request fee schedule, ETSPJ offered the following comments to the director of the Tennessee Office of Open Records Counsel and the Advisory Committee on Open Government:

Sept. 3, 2008
TO: Ann Butterworth, director, Office of Open Records Counsel, and the Advisory Committee
on Open Government
FROM: Board of Directors, East Tennessee Society of Professional Journalists
Contact: Mia Rhodarmer, president of ETSPJ, and editor, The Advocate & Democrat,
P.O. Box 389, Sweetwater TN 37874 (423) 337-7101
Thank you for the opportunity to comment on the proposal regarding reasonable fees for copies
of public records in Tennessee. Our board is pleased that your office is working toward
consistency in assessing fees across the state, and we applaud your efforts to ensure that all
citizens can examine and copy public records to better understand the workings of their
government.

We appreciate your time and effort on this important task. Please consider the comments below
as you continue your efforts to make public records available to the citizens of Tennessee at
reasonable cost for all parties concerned.

Per-page copying and labor costs: We agree with the ideas that citizens can inspect records
without charge while not burdening taxpayers with costs of complying with abnormally large
requests, referred to in the proposal as “non-routine requests.” We are concerned, however, that
the proposed fee schedule appears to allow “routine requests” to incur both a per-page copying
fee that exceeds that of some commercial providers and staff labor charges that aggregate for a
single requestor (or associated organization) for each calendar month.

Members of the ETSPJ typically are employed by print and broadcast news media that daily or
almost daily request routine public records. Such records are used for reports to inform citizens
of happenings in their communities and to show how local and state governments are
functioning. At present, copies of those records are provided without charge or at a per-page
charge to offset the costs of photocopying.

Such media reports serve both citizens and public office holders. In most cases, very little staff
time – perhaps as little as 5 to 10 minutes per day — is consumed to furnish these
contemporaneous reports of government actions. Under the proposal, this minimum amount of
daily time can multiply to exceed the monthly allotment by a single requestor, especially the
hours set for small public offices. Therefore, we question whether this is good public policy,
especially when citizens, through their taxes, are already paying for the staffing of public offices.
Communicating their work to the public through the news media seems a better financial and
work load alternative for records custodians than complying with multiple requests for routine
records from multiple citizens within a community. In addition, doesn’t the potential exist that
record keeping of monthly time spent and fee collection for such frequent routine requests will
take more staff time than simply charging a reasonable per-page fee for copying without the
additional labor fees?

Waiver of fees: The proposal provides that records custodians have the discretion to waive fees.
We think a waiver is a proper provision, but we question the discretion to custodians. We suggest
that specific conditions be set for granting mandatory waivers, for example, where requested
records are to be disseminated to the public and are in the public interest, such as to help citizens
learn how their government operates.

Format for record delivery: The proposed fee schedule does not appear to address directly the
matter of format for delivery of public records other than to state that the USPS will be the
standard method of delivery. We ask that your office and the advisory committee include a
provision that when no additional costs or expenditures of labor will be incurred by the records
custodian, records already existing in electronic format will be delivered electronically, either via
e-mail or copied to digital media for requestor pickup or delivered USPS mail.

We argue that this is good public policy because electronic delivery is almost always cheaper
and faster for both parties. In addition, where public offices have spent taxpayer funds to gather
data subject to the Public Records Act, often that data becomes more meaningful to citizens if
they can use widely available statistical software packages to analyze the data in multiple ways
beyond the analysis that fit the government’s original data-gathering purposes. Printing pages of
electronic data readily available in statistical format or converting that data to .pdf format not
only involves additional work for records custodians, but it also adds copying and mailing fees
for the requestor. More importantly, it deprives citizens of examining “their data” in ways most
understandable.

Redaction of confidential information from public records: We understand the need for
redaction. Where redaction is needed for electronic delivery of records, such redaction is
sometimes possible by making a copy of the original and, with only a couple of keystrokes,
highlighting and deleting those columns containing confidential information. Where confidential
material is not so easily redacted, we recognize that additional fees may be incurred, but those
redaction can still be made on an electronic copy of the original so that electronic delivery will
still cost less than a paper copy. Thus, redaction should not be an excuse for avoiding electronic
delivery.

Where redaction is routine, such as social security numbers and other clearly confidential
information, if labor charges are to be assessed, we think that they should be at the rate of
clerical personnel required to redact such information rather than more expensive attorney costs.
We suggest that attorney fees be assessed only when an attorney’s expertise is required to
determine whether information contained in a requested record is or is not exempt under the state
records statute.

Again, we appreciate your consideration of these comments.

The ETSPJ Board of Directors would like to thank ETSPJ Board member, treasurer, and Freedom of Information Chairperson Dorothy Bowles for her leadership in this area.

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