published Saturday, August 2nd, 2014

Taxpayers Protection Alliance criticizes EPB's records charge

EPB Senior Manager of System Analysis and Control Don Nannery works in EPB's all-new, state-of-the-art Distribution Center designed to complement the citywide Smart Grid and fiber-optic network.
EPB Senior Manager of System Analysis and Control Don Nannery works in EPB's all-new, state-of-the-art Distribution Center designed to complement the citywide Smart Grid and fiber-optic network.
Photo by Dan Henry.

EPB's much-praised gigabit broadband system has earned attention from a Washington, D.C., think tank that's looking into the validity of government-owned networks.

And as a result, the city-owned electric utility is at odds with the state's open records lawyer.

The Taxpayers Protection Alliance, a nonprofit, nonpartisan organization that researches government's effect on the economy, filed a request for about 2,100 pages of advertising contracts, emails and ad payments from the power board in March.

EPB told the group's operative, University of Tennessee at Chattanooga student Ethan Greene, he would need to pay $1,767 to cover the costs of collecting, compiling and redacting the documents. EPB said it would take five employees more than 63 hours to respond to the records request. After months of back-and-forth between Greene and EPB, he paid the fee. The taxpayer alliance reimbursed him for his expense.

Now Greene and the alliance are saying EPB should repay the money, because Greene only requested to inspect the public documents, which is free under the state's Open Records Act.

The state's open records lawyer agrees with them -- mostly.

Elisha Hodge, open records counsel for the Tennessee Comptroller's Office, said EPB could charge for the cost of redacting documents, but not for compiling them.

That would mean $1,716 should be returned, Hodge said. EPB initially estimated redaction would take two hours of work at $50.85 an hour, and the first hour is free, under the law.

"The opinion of this office is, no, they cannot charge for all that labor," Hodge said Friday.

But EPB's senior staff legal counsel disagrees with the state.

Kathryn King, EPB's chief lawyer, said because collecting and redacting the documents took so much time, the utility could charge Greene for the work.

"I have the utmost respect for Ms. Hodge, and I respect her interpretation [of the law.] I think at the end of the day, the question is should our customers pay this cost, or should the Washington think tank that wants the information pay," King said.

Alliance President David Williams said Greene has asked for a refund.

He said Greene was their "guy on the ground" in Chattanooga for a larger project.

"We're looking at municipal broadband systems across the country, and EPB has been held up as a great example of how this can work," Williams said.

The project doesn't have a nailed-down hypothesis, but Williams suspects his research will turn up evidence that taxpayer dollars are being spent on advertising to help a public utility to compete with private enterprise. EPB's broadband network competes with Comcast.

"We have a sneaking suspicion, because a number of years ago [EPB] received a bunch of [stimulus] money from the Department of Energy to fund their gigabit service," Williams said.

This is not the first time an alliance member has prodded the power board. Former Free Press editorial page editor Drew Johnson, who left the newspaper on Aug. 1, 2013, is now a senior fellow with the taxpayer alliance. Williams said Johnson, whose Free Press editorials were critical of EPB, has been involved with the broadband project.

Deborah Fisher, executive director of the Tennessee Coalition for Open Government, says it doesn't matter who requested the record or how long it took to compile -- EPB still has to follow the law.

"I think this is an example of an entity discouraging citizens from getting information that they are entitled to see. I think sometimes, big fees can be used to stop a citizen in their tracks from getting information about government," Fisher said.

"It's a city-owned utility that has huge revenue and they spend a lot of money. And that is exactly the kind of agency that needs to be transparent."

Contact staff writer Louie Brogdon at lbrogdon@timesfreepress.com or at 423-757-6481.

about Louie Brogdon...

Louie Brogdon began reporting with the Chattanooga Times Free Press in February 2013. Before he came to the Scenic City, Louie lived on St. Simons Island, Ga. and covered crime, courts, environment and government at the Brunswick News, a 17,000-circulation daily on the Georgia coast. While there, he was awarded for investigative reporting on police discipline and other law enforcement issues by the Georgia Press Association. For the Times Free Press, Louie covers Hamilton County ...

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