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Town ‘open records’ policy questioned

Farragut Board of Mayor and Aldermen received an opinion from the Tennessee Office of Open Records regarding a complaint filed by Farragut resident Lamar Orr.

At recent Board meetings, Orr told Board members that Town staff had not provided him and other Belleaire subdivision residents access to public records in an appropriate amount of time.

Town attorney Tom Hale said staff had been slow to hand over documents before they reviewed them in case a resident had questions. At the May 22 Board meeting, Hale told Board members he had already advised staff to discontinue this practice.

At this same meeting, Belleaire residents notified the Board that they had contacted the Office of Open Records in Nashville. The Office sent Hale its opinion last week.

“This opinion deals with the content of [Belleaire residents’] complaint and it also reviews various aspects of the ordinance that we adopted dealing with the public records issue,” Hale said.

In its opinion, the Nashville office recommended that Town staff provide access to records whether they have had time to review them or not, which Hale again said he had already told staff.

“You will remember when this issue was brought to your attention … that at the end of that meeting, I pointed out to you there has been a practice by the staff of reviewing plans or plats … prior to sitting down with residents,” Hale said.

“As I told you at that time, I have instructed them that they are not obligated to answer questions if they have not reviewed the plans … but they do need to make the plans available within reason provided for in our new ordinance,” he added.

The opinion also recommended various amendments to the Town’s recently passed public records ordinance because of a change to Tennessee open records law, which went into effect July 1.

One such item is changing the Town ordinance to encompass all of the records deemed confidential in the new Tennessee amendment. The opinion also recommended the Town consider requiring photo identification to prove Tennessee citizenship, which is required to be granted access to public records.

The most important recommended change, according to Hale, is that the Town cannot charge for the labor used to duplicate public records, only for the copies. In the opinion, a requestor can be charged for labor only when law enforcement personnel records are those requested.

The Town’s fee schedule includes “per page costs for ink, toner, paper, copier lease or cost of disk, etc., plus the time and labor of Town employees based upon an average hourly pay rate for the Town’s clerical employees, including insurance and other benefits.”

Town costs, for copies and labor, run from $2.34 for one-to-six minutes to $23.47 for 55-to-60 minutes. The Knox County Sheriff’s Office in Town Hall charges $10 per copy.

The opinion, written by open records specialist Elisha D. Hodge, said: “It is this Office’s opinion that the Fee Schedule also violates both the letter and spirit of the current law ... it is possible that a Court would look at this provision as a means used to ‘substantially inhibit disclosure of records.’”

“According to this letter, that Office believes those costs are not recoverable under the current law, but I think the opinion acknowledges that the law that [went into effect July 1] does allow that you recover those kinds of costs,” Hale said.

“In most of the issues involving our ordinance, the opinion is that a court might, or could, or possibly could, find that a cost could not be recoverable. There is substantial lack of clarity in the law of this state in what can or cannot be recovered in the way of costs, and that’s why we have courts, to make those determinations.

“I will be looking at this in further detail and discussing it with that Office, making sure our ordinance is in compliance … But I think we may need to amend slightly our ordinance as we go forward,” Hale said.


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