Open Records- Part III
Requesting Government Information
A government entity must have a records policy that includes: 1) the process of making a request, 2) the process of responding to a request, 3) a list of fees and billing procedures and 4) the contact information for the entity's Public Records Request Coordinator. Additional items may be included, some of which are discussed below.
How Do I Make a Request?
There are two types of methods by which a citizen may request records. The first type, a request to “inspect” (view) records, does not have to be in writing. Such a request may be in person, by phone, mail, email or portal if available. However, an entity may require a request to be in writing if the requestor is seeking copies of government records.
Can I request “All Records”?
Vague Request May Be Denied. The requestor should provide the custodian “sufficient details to identify the records that are being requested”. So, if the request is sufficient to identify the records, then the entity must provide the records. However, an entity could deny a request for “any and all records” as such as the request lacks sufficient criteria for which a custodian might identify the records.
Many times, requestors seek “all emails” through certain dates for fear the entity will withhold information. Such a strategy is flawed because 1) it doesn’t achieve the purpose and 2) will often lead to costly fees for a requestor.
For example, an individual employee may have 30,000 emails including junk and spam. If the request is for copies (see below), the entity can charge the standard rate ($0.15 per page) plus the hourly rate to review the emails to redact information. If the entity's policy requires their attorney to review the emails, the requester may be stuck paying that rate. If the reviewer can read and redact 100 pages per hour, the requestor’s vague request even if approved will be setting them back thousands of dollars.
REQUESTOR TIP – If you are requesting records, specifically ask for what you want. If it turns out later the entity withheld the records, they will be responsible for damages including the requestor's legal expenses required to obtain the records. If you are concerned about a possible correspondence between a teacher and a principal concerning your student, ask for that rather than all the emails the two parties have sent over the past school year.
Can I Take Pictures During the Inspection?
Maybe. This will depend on the entity's written policy. If the entity provides a disclaimer indicating that photographs of records will be considered copies, the entity will have the right to require the requestor to follow the procedures for copies of records as well as the associated cost.
How Much Can the Entity Charge?
An entity can charge for copies and labor to produce the records. The best practice would be for the entity to follow the suggested rates by the Open Records Council. In doing a court will likely hold there is a presumption that the entity's fees were reasonable.
Keep in mind, if a requestor only seeks to “inspect” the records, the entity may not charge the requestor. Yes, even if the entity had to spend 30 hours retrieving the documents and redacting them, they still cannot charge the requestor. However, even if copies are requested, the first hour of labor is to be waived.
As mentioned above, requestors should be specific, it will reduce their cost as well as the response time the entity will need to provide the records.
ENTITY TIP – Oftentimes, requestors will submit a request to "inspect" simply to avoid fees. It is also not uncommon in these situations that those same requestors to scan or photograph the records. A clear policy should be drafted to ensure that such requests must be paid for in advance.
What if the Requestor Never Pays or Keeps Requesting Data?
If a requestor is provided an estimate, agrees to pay, and later fails to pay, a subsequent request may be denied until the agreed payment has been made. Additionally, any future inspection request may be denied for 6 months if the requestor makes 2 or more requests in 6 months or fails to view records within 15 days after being notified by the entity.
How Long Do Entities Have To Respond To Requests?
Following a request, an entity must respond within 7 business days in one of three ways. The entity may 1) deny the request in writing, 2) make the records available, or 3) provide in writing the time needed to produce the requested records. Failure to respond or any other response is considered a denial.
Finally, a proper response must include an estimate of the cost (if copies are requested) to produce the records. Fees may also be charged by third parties to extract information or obtain them from a third-party archive service.
What Do I Do If My Request Was Denied?
If you have been denied according to TCA § 10-7-503 or you feel the entity has imposed unreasonable fees, you will need to file a petition in chancery or circuit court in the district in which the entity resides. While anyone can file such a petition, it is advised that anyone considering such action should consult a licensed attorney. If you live in Tennessee and need assistance, please contact our office.
Once filed, the government has the burden of proving the denial was justified. The requestor will only hold the burden of persuasion if the entity's charges are equal to or less than the Tennessee Comptrollers Suggested Rates.
Stay tuned for Part IV on Open Records. Be sure to follow us on Twitter at @tnedlaw or our Facebook Page “Tennessee Education Law”. Consider following and sharing the page.