In a continuation of a nearly yearlong battle over public records in Hamilton County, county attorneys have sought to charge $14,000 in combined fees for one citizen and the Times Free Press to view public records, despite the state legislature doubling down on allowing such inspection of documents at no charge.
The county faced scrutiny from the public and state lawmakers for destroying records that had been requested by the newspaper and charging for and temporarily denying records responsive to two records requests by the newspaper in 2019. Hamilton County has since implemented even higher charges for inspection and has withheld records from the paper and citizen Dan Rawls.
On Feb. 14, Rawls requested a year's worth of email, chat, phone and web browser histories of seven county employees, including Mayor Jim Coppinger, county attorney Rheubin Taylor, Property Assessor Marty Haynes and several of Haynes' staff members, during Haynes' contentious battle for re-election.
In what Rawls calls a "stonewalling" attempt by the county, Public Records Coordinator Dana Beltramo told Rawls to amend the request, which he declined to do, saying it was a large but finite set of records that he was pursuing.
A month later, Beltramo sought to collect over $12,000 from Rawls before the office would begin compiling the records he requested, citing more than 150 hours of labor at rates varying from $29 to $82 per hour.
Around the same time, the newspaper requested to inspect three months of phone logs and emails - limited to specific key words and recipients - relating to the destruction of previously sought records, and was told to pay more than $1,800 for labor to print and redact the records.
Under state open records law, charging for the viewing of public records is prohibited (unless there is a separate section of law allowing it).
Despite pushback from both, neither the newspaper nor Rawls have received any amended charge, any time estimate for completion of the requests or any records from the county.
"This is an insane cost assessment for information easily generated from databases. It's an apparent attempt to block public access with exorbitant cost. Even if the data is provided it will most likely not be usable because of arbitrary redaction policies to cover up illicit activities and thwart transparency," Rawls wrote in a May email to the newspaper and elected officials. "The state legislature needs to step in and update the open records act to ensure greater transparency of public officials."
Twice this year, the legislature has done just that.
Increasingly clear
In February, members of the local delegation introduced a bill in response to Hamilton County's destruction of records requested by the Times Free Press. The measure passed both the state Senate and House this month. If signed by Gov. Bill Lee, the legislation will prohibit local governments from destroying any record that is subject to a pending records request, require records of correspondence about a records request be maintained for at least a year and establish a fine of up to $500 per violation.
The other change, which was signed into law in March, reiterates the prohibition on charging people to view public records.
When defending each charge before the new laws, Taylor has repeatedly cited an ongoing lawsuit in Knox County, which indirectly addresses charges for inspection, arguing that the fee was not for inspection but for preparing the records to be inspected.
Despite expert opinions and pushback from the paper, Taylor from August to May referenced an opinion held by the Knox County Sheriff's Office in the ongoing lawsuit, arguing that requesters can be charged for preparation and redaction, citing language that allows public utilities (not sheriff's departments) to impose such labor charges.
"The problem, particularly in this situation but in other situations, is when someone has to inspect records which have to be, first of all, compiled, reviewed, there may be some redaction of those records before we can release them to someone else," Taylor said when asked about the records by county commissioners at a February meeting. "Our policy is, as is some other municipalities' policy, that we charge after the first hour for the time required.
"We conflict, yes," Taylor said, having cited Knox County. "There are some counties who don't interpret it or practice it as the statute may be written."
The state office which oversees public records issued a 2008 opinion clarifying the interpretation to mean inspection charges cannot be applied.
"We are of the opinion that a governmental entity cannot assess copying costs or labor costs associated with producing public records when the requester only wants to inspect the record and he or she is not seeking electronic or physical copies of the record," Lee Pope, of the comptroller's Office of Open Records Counsel wrote in a January email about the charges, adding that "a records custodian may not assess a fee for supervision and the retrieval, review, and/or redaction of public records when the request made by the citizen is for inspection only."
With two of the state's largest counties debating the issue, the legislature passed a bill in March, clarifying that a charge may not be imposed on someone seeking inspection.
"[The section] did occasionally cause confusion, and then, you know, the Knox County Sheriff actually tried to use that to try to argue that it applied to a lot more than just utilities," Tennessee Coalition for Open Government Executive Director Deborah Fisher said. "But [the March bill] was really a technical correction."
Within a month of the new bill passing, the Chancellor over the Knox County case also ruled that the inspection fees discovered in that case were unlawful.
'Look at reconsidering'
With the new state legislation and the relevant portion of the Knox County case both coming down against Taylor's argument, the Times Free Press again asked Hamilton County to reconsider the charges in mid-May.
"We've decided to look at reconsidering," Taylor said of the charge.
After Taylor acknowledged the new legislation, the newspaper asked him what was left to consider about the charge.
"We'll discuss it, but we haven't even discussed it yet," he said.
In late May, or just over three months after the most recent requests were filed, Taylor cited the coronavirus pandemic for why his office hadn't "even discussed changing" the charge.
Fisher says the office is required to provide a time estimate for inspection of the records under state law.
"They should have provided you access to the records by now and given you an estimate on when you can come inspect those records," Fisher said. "So it's two pieces of the law it looks like they violated: not telling you when the records would be ready for inspection, and trying to charge you, which is a denial of access to inspect."
Fisher said that Taylor's consistent recognition of and decision to go against state law don't appear to be changing, even as the legislature and Knox County lawsuit close in on his argument.
"I think his behavior and his denials and the delay are basically telling the newspaper that they cannot have those records unless they sued him for it," she said.
When the newspaper asked Taylor in May why his office seems to be fighting so hard to withhold the requested records, he said there was nothing special about them.
"I think if you ever see what it is you're requesting, you'll see how nothing it is," Taylor said. "I can assure you there's nothing in all that documentation that you asked for. There's no smoking gun."
Now, roughly four months in, Taylor and Beltramo have not responded to multiple requests for an update on the two most recent charges.
Contact Sarah Grace Taylor at 423-757-6416 or at staylor@timesfreepress.com. Follow her on Twitter @_sarahgtaylor.