published Thursday, March 24th, 2011

Keep public records open

Sponsors of a bill in the Tennessee House of Representatives that would permit government agencies to charge exorbitant fees to individuals, the media and other interested groups who want to inspect or to obtain copies of public records are quick to say the legislation is just a reasonable effort to contain costs and to balance budgets in a time of austerity. Nonsense. The bill is an attack on the public’s right to review government records and a thinly disguised effort — part of a broad campaign taking place across the nation — to end the transparency that is essential to democratic, open government.

The legislation, officially House Bill 1875, would allow government to impose a fee to cover “actual labor costs” involved in providing records for public inspection. Current law allows a government agency to charge no more than a “reasonable fee” for copies. The difference between current law and proposed legislation might not seem like much, but the latter would change a policy in place for half a century or more and make it far more expensive for citizens to review public records. That’s especially pernicious legislation.

The proposed legislation says government can charge “actual labor costs” if “the time that is reasonably required to perform the activities that are necessary to produce records pursuant to a request totals one (1) hour or longer.” It defines those activities as “to locate, retrieve, review, redact and copy records.” In other words, opponents of open government would create a system in which it could become so expensive to view public records that requests for such documents would be reduced because few could afford the price.

That, of course, would benefit those with much to hide and create a formidable impediment to individuals and institutions that rightly cherish open government and expect ready access to public records.

A vote on the House bill has been delayed, but the proposal will return to the floor soon. When it does, it should be roundly rejected. It serves no useful public purpose.

There already are provisions in state law that allow government to recover “reasonable” costs involved in producing information sought through public records requests. Individuals, the media and others have no problem in paying those costs as long as they are fair. No one objects to paying a pre-determined per-page fee for documents, or a cover charge, so to speak, to replace supplies such as toner. The proposed legislation, though, would permit fees far in excess of that.

It would allow, for an example, an agency to charge for employee’s time. That’s unreasonable. Taxpayers already pay that worker’s salary. Besides, a canny official determined to thwart the public’s right to know could assign a high-salaried official rather than a moderately paid clerk to fulfill a request for public records. It also could claim and bill for an excessive amount of time to meet a request for information, ratcheting the bill significantly higher. The resulting charge could be enormous — and quickly become a deterrent to public access. There’s no reason to allow that.

Taxpayers everywhere already underwrite the cost of operating government offices. That includes the creation, maintenance, storage and retrieval of records. There’s no reason to make the public pay twice to see or retrieve a copy of those records — unless there is something to hide.

Raising fees is, plain and simple, a way to reduce access to public records and to reduce transparency. State courts have held that governments cannot impose outrageous fees to deter requests for public records. The current legislative attempt to skirt that sensible precedent in favor of a law that promotes secrecy at the expense of the public’s right to know should be halted.

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