City Leaders Asked to Revisit Public Records Ordinance

June 7, 2007
Dwayne Page

The Executive Director of the Tennessee Coalition for Open Government has written a letter to city leaders asking them to review and reconsider portions of an ordinance adopted last fall which he says may be contrary to relevant state law, appellate court decisions, and opinions of the State Attorney General

Frank Gibson says he is concerned about the City of Smithville's ordinance regulating access to, inspection of, and reproduction of public records and believes it may have the effect of hindering public access. He is asking city officials to either review the ordinance or submit it to the Municipal Technical Advisory Service for a legal review.

Specifically, Gibson says the ordinance contains at least two troubling sections: One requires citizens to submit \"requests for inspection or copying\" in writing or on a form provided by the city. The other imposes fees in the form of \"actual personnel costs\" to retrieve and or supervise access to records. That is on top of a 25 cent per page copying fee.

Gibson says the Tennessee Court of Appeals noted in 2005 that the Public Records Act does not allow an official to condition access to records on filling out a form or making the request in writing.

The city ordinance also authorizes city employees to charge for time spent \"retrieving and accessing\" and \"supervising access to and inspection of or reproduction of records.\"

Gibson says court decisions allow agencies to adopt \"reasonable rules\" but only to cover the cost of copies.

According to Gibson, the State Supreme Court said in a case called The Tennessean vs Electric Power Board, that \"there is no authority under the (Public Records) Act allowing agencies to establish rules that would substantially inhibit disclosure of records. Moreover, limiting an agency to rules governing only the actual ‘making of extracts, copies, photographs, or photostats is consistent with the legislative policy in favor of the fullest possible access.\"

Gibson says \"The State Attorney General has said in an Opinion that \"conditioning the right to inspect a public record upon payment of a fee unauthorized by state law would be tantamount to denying the right of inspection that is set forth in state law.\"

In response, former City Attorney Sarah Cripps says \"Contrary to the protestations of Frank Gibson, the Director of the Tennessee Coalition for Open Government, the City of Smithville's Public Records Ordinance was, indeed, reviewed by the Municipal Technical Advisory Service (MTAS). In fact, former City Attorney Cripps forwarded the Public Records Ordinance to MTAS Attorney Dennis Huffer for his review prior to the ordinance being submitted to the Smithville Mayor and Board of Alderman for approval. Attorney Huffer made certain changes to the ordinance which were incorporated into the ordinance that was utlimately passed by the Smithville Mayor and Board of Aldermen.\"

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