KNOXVILLE — Pics or it didn't happen? Good luck with that on the public records trail.
From Mountain City to Memphis and Clarksville to Chattanooga, local government agencies follow conflicting, contradictory — and completely arbitrary — rules on whether residents can take cellphone pictures of the records they helped pay to create.
TCOG’s public records policy audit can be found at http://tcog.info/public-records-policy-audit/.
Just 5 percent of cities and counties — and no school systems — out of 259 agencies across the state examined in an audit by the Tennessee Coalition for Open Government have policies that specifically allow requesters to take photos of records rather than pay for copies.
Nearly half of the agencies — 48 percent — ban use of personal equipment outright. Another 41 percent don't even acknowledge the possibility, at least not on paper. Even the policies that allow cellphone photos aren't necessarily consistent.
"It's unreasonable," said Deborah Fisher, executive director of the Tennessee Coalition for Open Government, which champions access to public records around the state. "If someone has a cellphone and just wants to take a picture of a document, it's essentially the same thing as taking a pencil and paper and writing the information down, just easier and faster."
The Legislature two years ago ordered all cities, counties and school districts to adopt public records policies. Some of the confusion and discrepancies over cellphone photos apparently resulted from the wording of a model policy offered by the state Office of Open Records Counsel as a template for local governments.
"Our policy came from the state," said Amber Scott, Lenoir City administrator, who handles the city's public records requests. "It's the model policy."
That policy states: "A requester will [not] be allowed to make copies of records with personal equipment."
State officials say they meant to offer agencies options. But instead of tailoring the legalese to fit, the bulk of city councils and county commissions apparently slapped the policy on the books as a one-size-fits-all, sometimes with and sometimes without the brackets or parentheses.
Most of the records policies that ban photos parrot the model nearly word for word.
"The model policy gives public officials the discretion to choose to allow people to take pictures," said John Dunn, spokesman for the state comptroller's office, which oversees the open records office. "It was never meant to be copy-and-paste. We mean for the cities and counties to compare the policy with their own circumstances and adopt what fits their needs."
TCOG, the Tennessee Press Association and the Tennessee Association of Broadcasters called repeatedly for the state to revise or clarify its model, warning the language could lead to blanket bans on photos. The same policy still appears on the state's website.
Even among local governments that allow pictures of records, the rules vary. Some county policies hold out the possibility of charging requesters who want to snap cellphone pics. Nice try, says the state.
"You couldn't," said Dunn, the comptroller's spokesman. "Not unless they physically took the records."
Sunshine and cents
Some officials argue requesters shouldn't be able to just snap a picture of a record without paying for it.
"We want to keep a record of everything that's issued by us," said Sonya Stephenson, Rutherford County human resources director, who also handles the county's records requests. "I do think that we have to be mindful that people are paying for these records. I can tell you this: it takes me hours sometimes to process these requests. We have to track the time we spend gathering these records, pulling them and redacting them. If we can't charge people, the taxpayers are just paying somebody to handle records requests."
That kind of attitude runs contrary to the spirit of sunshine laws, advocates say.
"These records are already paid for by the taxpayer money that helped create them," Fisher said. "In some states, government agencies aren't allowed to charge for public records at all. People being able to have access to government records that are public should be part of the cost of doing business."
Fisher said she'd like to see the Open Records Counsel issue an opinion on when restricting use of personal equipment might be reasonable. Tennessee's Public Records Act allows for "reasonable rules" on handling requests but also guarantees residents the right to "take extracts or make copies thereof, and to make photographs or photostats" of the records inspected.
State Sen. Mike Bell, R-Riceville and chairman of the Senate Government Operations Committee, threatened to introduce legislation to allow cellphone photos after learning some state agencies had denied requesters that option. No such bill materialized before the end of the last legislative session. Bell didn't return calls for comment on the issue.
"I question whether a complete ban is allowed under the law, and I don't think it is," Fisher said. "If there are rules, they have to be reasonable."