Gibson: Proposed record change a bad penny

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The Tennessee School Boards Association's legislative agenda for 2015 includes support for a proposal that would allow government to charge citizens and taxpayers to inspect public records.

When I heard of the proposal, it immediately brought back that famous Ronald Reagan refrain from his political debates -- "There you go again."

TSBA had planned to push the proposal last year but did not. This year's effort resurrects a similar bill three years ago (from a different source) that the legislature's Fiscal Review Committee staff estimated would extract almost $2 million from the pockets of Tennesseans to pay to see public records. It went away.

Government agencies already can charge fees to provide copies of records, including reimbursement for public employees' time spent processing records requests. The fee starts after the first hour, so we are already on a slippery slope.

This would mean all a Tennessee citizen/taxpayer is entitled to get for their property, sales or other taxes is one hour of a public employee's time.

We had not seen any actual legislation at Press-time, but this is what the TSBA website says:

"Fees for Inspection of Records: TSBA believes that the public's ability to inspect records must be weighed with the burden on staff to comply with open records requests and supports legislation to allow for reasonable fees when (local education agencies) must create numerous documents and/or expend several man hours in order to comply with a request for inspection."

This is among other TSBA agenda items, including opposing the loss of local control of schools; opposing any effort to create school vouchers, opposing the election of schools directors, and supporting "fiscal autonomy" to allow existing school districts to convert to special districts.

The entire TSBA agenda is long on freedom for elected school boards but short on other freedoms, including freedom of parents and the public to get information about school operations. Even more remarkable, there's nary a word in the TSBA agenda about education standards or reform by whatever name - Common Core or state standards.
Proponents will stress the "burden on staff," promise fees will be "reasonable" and problems in creating "numerous documents," never mind the fact such a policy or charge would amount to double taxation. Add to that, the fact there would be no way to police abuses or regulate the policies.

The public feels it already pays for the collection and maintenance of records and that should "be weighed," too.
Repeat, large requests often germinate from political controversies, where political opponents are trying to get information on an official. Things get intense when the official attempts to thwart those efforts by making it harder to get records.

Officials justify their actions by saying the requests are politically motivated. One records request in East Tennessee revealed the schools director was violating state law and his employment contract, and led to the recall or resignation of three school board members.

There will be plenty of horror stories around. Williamson County will probably be among them. The Williamson Herald newspaper reported Jan. 6 that schools director, Dr. Mike Looney, told a board committee he needed to hire an "outside consultant" to help manage an unusually high volume of public records requests this school year.

One request came from a school board member who suspected or has reason to believe the superintendent might have been involved with a citizens group that participated in the August school board elections. The implication was they opposed her candidacy.

She used some of the 2,000 emails she got from her records request to file an ethics complaint against the group with the state Registry of Election Finance and the local district attorney. Nothing has become of either.

Looney told the committee records requests had "bogged the district to a standstill in some of our departments." Board attorney Bill Squires acknowledged the volume of requests had exploded but explained some of the issues discussed by the board this year "have been so polarizing to the public."

In 2008, when the legislature instructed the Office of Open Records Counsel to help create a schedule of reasonable charges for making copies, it made it clear government "may not" assess a charge to view public records unless given specific authority.

Lawmakers also told the OORC to consider certain principles in recommending fees for copies, principles adopted the year before by a bi-partisan legislative study committee:

The first principle said "State policies and guidelines shall reflect the policy that providing information to the public is an essential function of a representative government and an integral part of the routine duties and responsibilities of public officers and employees."

The second stated "That excessive fees and other rules shall not be used to hinder access to non-exempt, public information."

The proposal supported by TSBA is counter to the spirit of those recommendations, and my fear is such a fee like this would, in the words of the Tennessee Supreme Court, "substantially inhibit disclosure of public records."

Frank Gibson is TPA's public policy director. He can be reached at

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