NASHVILLE - A state agency that's supposed to help Tennesseans access public government records lacks resources to do the job adequately and, as a result, has amassed a major backlog of inquiries, a new state Comptroller's audit says.
The Office of Open Records Counsel, located under Comptroller Justin Wilson, only has two part-time employees, both of whom who split their time working in other areas, according to auditors.
Because of growing numbers of Tennesseans wanting to learn what state and local government agencies are up to via record requests, as well as frustrated citizens encountering problems with government meetings meant to be open, the office is experiencing a "significant backlog in reviewing and responding to open records inquiries," auditors noted.
As of Sept. 14, the office had a backlog of 603 inquiries with two going back to March 2014. The total includes 380 open requests, meaning they are still awaiting an initial response. Another 223 were classified as "pending" because research was still in progress. The office had 216 inquiries in both categories combined that are less than 90 days old.
Not all the inquiries are from the public. Government agencies also contact the office.
The audit warns the "inability to provide expeditious responses could impede the office's mission to provide critical information to citizens, media and government offices regarding public records and open meetings."
And inquiries keep pouring into the office. In fact, they've tripled from the office's opening in 2007 to more than 1,800 requests for help in fiscal year 2014-15.
The findings caught advocates of greater government access and accountability by surprise.
"I've had some complaints from people who've called me on our help line to say they haven't been able to get a response from the Office of Open Records Counsel," said Deborah Fisher, executive director for the Tennessee Coalition for Open Government.
Comptroller Justin WilsonBut Fisher said she had no idea the problem was so large.
"Yes I was very surprised by the number of inquires that had not even been answered at all," she said.
Fisher said the law is intended to "give citizens a place to go, short of filing a lawsuit. The office can clarify the law."
When the public gets the "runaround" or government officials erect a "stone wall" and flat out refuse requests, Fisher said, it sometimes takes only a call from the office to get state or local officials moving.
Lucian Pera, a Memphis attorney and member of the Advisory Committee on Open Government, which meets regularly to advise the Office of Open Records, was also taken aback. He's been on the advisory committee for more than a year.
"It was never discussed at any meeting I was in," said Pera, whose clients include The Commercial Appeal in Memphis. "It's very disappointing. I was on the legislative study committee that generated the legislation that created the office."
Pera attributes the ballooning inquiries to the office in part to "people starting to figure out they're there." But from his position, there's another issue driving the increase. The state of public records in Tennessee "is not good and it's gotten worse," he noted.
The Office of Open Records, now headed by Ann Butterworth, was created in 2007 by then-Gov. Phil Bredesen at the request of TCOG and the Tennessee Press Association, which represents newspapers. It was established in statute in 2008.
It was intended to help citizens, news organizations and government agencies by providing information and informal advisory opinions on Tennessee's Open Records Act and the Open Meetings Act (Sunshine law). Those opinions are posted on the agency's website.
The office also mediates informally with agencies and assists with resolution of issues on open records requests as well as collects data on open meetings law inquiries. The office, however, does not file requests.
A full-time counsel headed the office until her resignation in October 2014. Since then, Ann Butterworth, Comptroller Justin Wilson's assistant for public finance, has been pulling double duty due to staffing reductions.
The only other staffer in the Office of Open Records Counsel is a legislative legal assistant, who divides her time between inquiry tracking and duties unrelated to the office.
But help may be on the way.
Auditors noted that "following our discussions with the Open Records Counsel and the Deputy Chief of Staff, the Comptroller's Office submitted to the Department of Finance and Administration a cost increase request totaling $264,800 for two new attorney positions to assist with the operation of the Office of Open Records Counsel."
In her official response to auditors, Butterworth said the office has been flooded with inquiries. And questions about both the state's Public Records Act and Open Meetings Act "are very complex and often require extensive research."
The Comptroller's Office, she said, appropriated $100,000 for one position in 2007. "Since then," she said, "actual annual costs have exceeded the original appropriation."
In response to another audit finding that timeliness expectations on inquiries have never been defined, Butterworth said "we will ensure the timeliness expectations are both defined and monitored for the different types of requests."
Contact Andy Sher at asher@timesfreepress.com, 615-255-0550 or follow via twitter at Andy Sher1.