Pay to See

Hearing in records lawsuit

Pay to See

The Knox County Sheriff’s Office says it can charge labor costs for requests to view public records. Despite long-established state law, a judge may agree.

by jesse fox mayshark • June 11, 2019


knox county deputy law director amanda morse addresses chancellor john weaver during a hearing monday.

A Knox County judge on Monday said he was inclined to allow the Knox County Sheriff’s Office to charge labor costs for complying with requests to view public records, during a hearing in a University of Tennessee professor’s open records lawsuit against the department.

Seeking records from the county's participation in the 287(g) immigration enforcement program.

The case was continued for further argument today, but if that ruling by Chancellor John Weaver is finalized, it could contradict long-established statewide application of the Tennessee Public Records Act and the explicit guidance of the state’s Open Records Counsel.

“The ruling at this point will be, the professor’s entitled to inspect, and [KCSO is] entitled to reasonable charges,” Weaver said, after hours of argument over one of many sets of records at issue in the suit filed by Meghan Conley, a sociology professor who is researching the sheriff’s department’s participation in the federal 287(g) immigration enforcement program.

Conley, who is writing a book about the impact of immigration enforcement on immigrant communities across the Southeast, filed the suit in April alleging that KCSO has improperly refused numerous information requests during the past two years.

One of her complaints was that the department refused her request for bulk examination of arrest records, offering instead to provide copies of specific reports if Conley could identify which ones she wanted.

Arguing for KCSO in Weaver’s court on Monday, Deputy Law Director Amanda Morse said arrest reports may contain confidential information that would need to be redacted before Conley could view them. She said Conley would need to pay for the hours of labor required to make those redactions before she could inspect the records.

“If you want to walk in and look at all of our arrest reports, there’s not an avenue to do that,” Morse said.

Conley’s attorney, Andrew Fels, replied that the state’s Public Records Act states that there can be no charge for inspection of public records and that labor costs can be assessed only if a requester seeks physical copies of the records.

That is also the position spelled out by the state’s Open Records Counsel, an office of the state comptroller charged with implementing the Public Records Act. In a 2008 opinion, the office wrote, “[I]t is this Office’s opinion that a records custodian, when responding to a request to inspect pursuant to the TPRA, is not permitted to charge for inspection of public records or any retrieval, review, or redaction done in preparation for inspection by a citizen, unless there is specific statutory authority to do so.”

Asked Monday if that was still the office’s position, John Dunn, the counsel’s director of communications, said in an email, “That is still the interpretation of the Office of Open Records Counsel. A government entity can charge for records, and the preparation thereof, when copies are made. There is no charge for inspection.”

Neither Fels nor Morse mentioned the 2008 opinion in court on Monday. It directly addresses the section of the Public Records Act that Morse cited as allowing the charges, Tennessee Code Annotated Section 10-7-503(a)(7)(C). The opinion says (emphasis added), “The ability to charge in the above-mentioned sections is only applicable when the requestor is seeking a copy or duplicate of a public record.”

‘Into the Shadows’

The issue of labor charges for records requests has long been a contentious one, with some public agencies arguing that complying with voluminous requests is a drain on staff resources. A 2015 legislative proposal to allow agencies to bill for their time in complying with inspection requests was shelved after statewide hearings. Advocates for transparency -- including media organizations -- argued that it would allow agencies to price the public out of access to information.

Both then-Knox County Mayor Tim Burchett and Knoxville Mayor Madeline Rogero joined the chorus against allowing the labor charges. At the time, Burchett said, “Accountability begins with access, and true accountability means reducing, not increasing, obstacles to access public records. Charging taxpayers for exercising their right to merely inspect the very documents their taxes pay to produce is a ridiculous step backward, out of the sunshine and into the shadows.”

In an email Tuesday, city Deputy Law Director Ron Mills confirmed that the city does not charge labor costs for requests to inspect records, even if they entail redaction of confidential information like Social Security numbers. County Communications Director Rob Link, asked if the county’s position has changed under Mayor Glenn Jacobs, said he would have to look into the question.

Deborah Fisher, executive director of the nonprofit Tennessee Coalition for Open Government, was alarmed by the county Law Department’s assertions. “This is not in line with the law,” said Fisher, who traveled from Nashville to Knoxville to observe Monday’s hearing. “It was really troubling to me that the Sheriff’s Office seemed to insist that they could charge for inspection.”

The charges could be significant. As an example, Hillary Martin, the public records coordinator for the Sheriff’s Office, testified during the hearing that it would take an estimated 15.25 hours to redact all 915 arrest reports from the month of May -- at a cost of more than $600 before a requester could even look at the documents.

Fisher said that’s why the law makes records inspection free. “The arguments that were made in the public hearings (in 2015) were that if you did not have free inspection, you essentially were blocking access to records,” she said. “If you had money, you could see public records. If you don’t have money, you can’t.”

In addition to her academic research, Conley is an immigrant-rights advocate and member of the steering committee of Allies of Knoxville’s Immigrant Neighbors (AKIN), a group that organized a rally in April urging KCSO not to renew its 287(g) agreement. Knox County is one of only two law enforcement agencies in Tennessee that participates in 287(g) (the other is the Greene County Sheriff’s Office).

Besides access to arrest reports, Conley has requested a range of documents about KCSO’s participation in the program, including emails, letters and contracts. Her lawsuit alleges that KCSO has improperly denied many of those requests.

Among other reasons for not being able to provide material, the department has said its system automatically deletes all emails after 30 days, and that it is incapable of performing basic searches for keywords within the text of an email.

Monday’s hearing ran from 9:30 a.m. until just past 5 p.m., with a two-hour break in the middle for an unsuccessful effort between the two sides to work out an agreement. It is scheduled to resume at 9:30 Tuesday morning.