New bill could impose 'exorbitant' fees to view public records

NASHVILLE — A bill cosponsored by a Johnson City state representative would eliminate the public's right to free inspection of public records. These records can include detailed spending records; police bodycam footage; or internal communications between government employees. The bill, if passed, would effectively reverse a portion of the Tennessee Open Records Act, which has been in place since 1957. Currently, Tennessee charges for copies made of public records, but allows the public or members of the media to inspect these records free of charge. "We just simply should not get to a point where the only information we get from the government is what they want to put out in the press release," said Deborah Fisher, executive director of the Tennessee Coalition for Open Government. "And that is the direction we're going." Ultimately, the fees are determined by the government entity itself. Fees would have to be "reasonable," as is provided by current law, and the information must be provided in the most efficient and cost-effective manner. However, state law provides few specifics as to what exactly "cost-effective" and "reasonable" can mean. According to Fisher, governments could base the charges on an attorney's hourly rate if it were determined that legal expertise was necessary to review or redact material. That would allow for governments to charge a member of the public or media thousands of dollars to look at a document. Fisher said everyday members of the public would be the most acutely affected by the legislation, as they would have less incentive to pay hundreds or even thousands of dollars for the records. Businesses such as law offices and insurance companies are commercially incentivized to make these requests, and they can more easily afford the fees. "It would basically create this new exemption to the public records law," Fisher said. "And that an exemption would be, 'If you can't afford to pay what we set as the price, you can't look at public records.'" The bill was introduced last week, and so far, has not yet been assigned to a subcommittee. It is sponsored in the House by Johnson City State Rep. Rebecca Alexander, R, who did not respond to requests for comment on the legislation. Similar legislation was introduced in 2015, but was quickly shot down amid public backlash. A year later, the state's open records council published a report showing citizens' overwhelming opposition to imposing a fee on the inspection of records. The Office of Open Records Counsel, a division of the Comptroller's Office, found that levying these fees could create a public perception "that something is being deliberately hidden." "This is not the democratic way," said one survey respondent. "This is an affront to our open democratic government, and I am totally against this! As are my friends as well as my husband. Please do not let this become the law." The report stated that public records requests can be difficult to comply with due to complexities with locating certain information. Because of this, the OORC recommended the state create better practices for locating and fulfilling public records requests, rather than placing a barrier between the requestor and the information.