Hamilton County has 'willfully' violated multiple open records laws in recent weeks, according to experts

Hamilton County has 'willfully' violated multiple open records laws in recent weeks, according to experts

August 12th, 2019 by Sarah Grace Taylor in Local Regional News

Experts suggest the Hamilton County Attorney's Office "willfully" violated open records law by suppressing multiple recent public records requests.

Two records requests filed with the office by the Times Free Press in the last month have been initially denied or had illegal fees imposed by county general government public records coordinator Dana Beltramo.

According to attorney and Tennessee Coalition of Open Government board member Rick Hollow, these violations threaten not only the newspaper's ability to do its job, but more importantly, citizens' right to keep tabs on the elected officials that serve them.

"If they are denying or fighting some requests, you have to wonder how they are treating others," Hollow said after the first violation. "These records don't belong to the county, they belong to the taxpayers. And if they won't provide them to taxpayers, they're not doing their job."

The first request, filed in late July, was made after a controversial meeting at which two commissioners drew criticism for a potential open meeting violation and two records showing related violations by the commission in the last 10 months. During that meeting, Ricardo Morris, president of Chattanooga Neighborhoods Arts Partnership, said Commissioners David Sharpe and Katherlyn Geter participated in meetings to discuss oversight of the Hamilton County Sheriff's Office, but the meetings had not been publicly announced or made known to all commissioners. The Times Free Press asked to inspect correspondence among the county commissioners, mayor and/or county attorney Rheubin Taylor, and the state's Office of Open Records Counsel, about public meeting violations.

Hamilton County Attorney Rheubin Taylor speaks during a County Commission meeting in the County Commission assembly room at the Hamilton County Courthouse on Wednesday, April 17, 2019 in Chattanooga, Tenn.

Hamilton County Attorney Rheubin Taylor speaks during a...

Photo by C.B. Schmelter /Times Free Press.

Beltramo initially denied all records involving the county attorney, asserting that all of his communications fall under attorney-client privilege.

"Communications between Commissioners, the Mayor, and/or the State Office of Open Records Counsel with the Hamilton County Attorney's Office are privileged. Accordingly, such documents are not available for review," Beltramo wrote in an email to the newspaper.

On the phone after the initial email, Beltramo doubled-down, adding that "if it comes into [the county attorney's] office, it's privileged," and that "our stuff is off limits."

In the email, Beltramo further warned that there would be fees imposed for the inspection of any records provided.

"Please keep in mind that although you have requested inspection of these documents, to the extent that the documents are required to be redacted or otherwise prepared for inspection there may be a charge, if such preparation exceeds $3 in copies or an hour of labor. If there will be a charge, this will need to be paid before Hamilton County will prepare the records."

Under Tennessee Code Annotated 10-7-503(a)(7)(A), charges cannot be imposed for requesters seeking to inspect records without requesting copies.

Tennessee Open Records Counsel Lee Pope, Tennessee Coalition of Open Government Executive Director Deborah Fisher and Hollow all said that the denial was unlawful.

"Just because you copy the county attorney on an email does not mean that it would be attorney-client privilege. It protects communications about litigation or potential litigation," Fisher said. "The emails [from the Office of Open Records Counsel], even if they were just to the attorney, are subject to public records law because the attorney is not the client so there's not an attorney-client relationship."

After being informed of the experts' opinions, Beltramo provided an incomplete sample of the records requested, adding that "because the majority of documents in the County Attorney's Office are protected under attorney-client privilege, attorney work product privilege, etc., requests for documents in this office are evaluated on a case-by-case basis."

The office provided 11 pages of documents, nine of which were within the parameters of the request. Among the documents was a response to one of the aforementioned requests written by Taylor. Neither the initial notice sent to the attorney's office for that incident or any reference to the other documented incident was included in the records provided.

Beltramo and Taylor denied having any additional records related to the request and blamed the missing records on their lack of access to commissioners' emails, though Taylor was also a recipient of the two letters in question.

While Taylor said he did not remember any such record, Commission Chairwoman Sabrena Smedley provided the Times Free Press a copy of a lengthy response by Taylor to the letter in question.

District 7 Hamilton County Commissioner Sabrena Smedley is seen during a County Commission meeting in the County Commission assembly room at the Hamilton County Courthouse on Wednesday, April 17, 2019, in Chattanooga, Tenn.

District 7 Hamilton County Commissioner Sabrena Smedley is...

Photo by C.B. Schmelter /Times Free Press.

Smedley added that all emails to her and other commissioners go through the commission staff and that the county attorney could access the documents in question through Legislative Administrator Patricia Moore.

Moore declined to comment on the process and missing records.

The Times Free Press requested to inspect all open records requests submitted to the office within the last year and the office's responses to them, to assess similar violations.

During a phone call after the second request was filed, Beltramo and Taylor told the Times Free Press their office would not begin compiling records until the paper agreed to pay an estimated cost for preparation of the records.

The next day, Beltramo requested the paper agree to pay $717 in fees to inspect the records. The estimate included $222 in copy fees and $495 to cover 12 hours of labor at $45 per hour.

"You have requested a large volume of information, which will take some time to assemble," Beltramo wrote in the email which included the estimate. "Most of the records are in PDF format, which will require that they be reduced to a hard copy in order for you to inspect the materials, as pursuant to Tenn. Code Ann. 10-7-503 (a)(1)(A)(ii), Hamilton County is not obliged to provide access to computers to allow inspection of records."

The code referenced by Beltramo states that open records law "does not include the device or equipment ... that may have been used to create or store a public record ... ."

The subsection cited does not make stipulations about cost of records or printing.

The county's own records request form, on which both requests were filed, states explicitly that public records law "does not permit fees or require a written request for an 'inspection only' request."

Experts denounced the charges, citing the state law and condemning the actions of the office overall.

Hollow said the county attorney's office was deliberately violating state law by trying to impose a fee on inspection. He referenced a 2010 opinion by the OORC that states that the "General Assembly has declared through language that is clear and unambiguous that 'a records custodian may not assess a charge to view a public record unless otherwise required by law.'"

"The county government has been by state law told 'don't do that' and if they continue to do it anyway, that's a step toward not just negligence but a wilful act against state law," Hollow said "If their act in withholding information is wilful, they may be liable in a lawsuit. There is no provision, in my opinion, that allows for that response. For them to say that a requester should pay them a fee for gathering information is wrong."

Pope said that the Office of Open Records Counsel stands by that opinion, making the estimate unlawful by their interpretation of state law.

Neither county official has responded to an email from the Times Free Press challenging the estimate that was sent Thursday.

In a phone call Friday, Taylor said the office would not be reassessing the fee and that he and Beltramo would reach out to the paper early this week.

When asked if he thought it was legal to charge a fee for inspection, Taylor said the fee was not for inspection but for preparing the records to be inspected.

In response to the expert opinions, Taylor said Monday that the office "sides with" an opinion held by the Knox County Sheriff's Office in an ongoing lawsuit, which argues that requesters can be charged for preparation, citing state comptroller's report written in 2008 which says charges can be assessed for the cost of making the copy and staff time after the custodian has spent at least one hour working on the request if the requester wants copies of the documents.

Taylor declined to comment further on the experts' assertions.

"It sounds like they need to get training from the office of open records counsel because a lot of the issues they are having," Fisher said of the attorney's office.

"It's well settled and there's not been any change in the law and it seems like it's just come out of the blue," Fisher added. "It's inexplicable why they would suddenly say that requester's can't have them without paying a huge fee."

Contact Sarah Grace Taylor at 423-757-6416 or at staylor@timesfreepress.com. Follow her on Twitter @_sarahgtaylor.