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VOL. 36 | NO. 45 | Friday, November 09, 2012

Haslam leaves records rules unchanged

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NASHVILLE (AP) - An eight-month review of how the executive branch responds to requests for public records has resulted in Gov. Bill Haslam deciding not to make any major changes.

The Republican governor said in a recent interview with The Associated Press that his initial fears about the potential abuse of open records laws had been allayed. Haslam said he has instructed his Cabinet to expedite records production to the public and the media, and to try to keep costs as low as possible.

"The conversation was all around that we always want to be as quick to respond as we can, and as open as we can," he said. "And if they're being reasonable with the requests, let's work with them on the dollar part as well."

The governor's decision means different rules will apply to the various agencies in the executive branch of state government. While the governor's office has generally waived fees for records ranging from its handling of the Occupy Nashville protests to the response to the recent meningitis outbreak, other agencies have insisted on charging fees.

Haslam said at the annual meeting of the Tennessee Press Association in February that he wanted to establish a uniform open records policy for his administration because of differing fee structures across state agencies. He also questioned whether the government should foot the bill for requests by partisan or commercial outfits.

Haslam recalled his experience of running for governor while he was mayor of Knoxville, and having rival campaigns drop expansive records requests on his office.

"The city was racking up some huge expenses from political opponents, and I thought, 'Is that fair for the taxpayers to be paying for?'" Haslam said. "Now it's public information, but we had to assign a lawyer and clerk full time to dig into our records."

Haslam's decision comes after an announcement from Comptroller Justin Wilson last month that his o ffice will no longer charge for any records fees of less than $25. Lawmakers also approved rule changes that allow Wilson to waive any records fees above that amount on a case-by-case basis.

Wilson said the new rule is motivated in part because it can cost his office more money to process a payment than the actual cost charged for a records request.

State officials in 2008 created a fee schedule as a guideline for records custodians to use to charge for producing documents. Some records custodians have interpreted those recommendations as a requirement to collect copy and research fees, though open records advocates have stressed that's not the case.

"The biggest problems that newspapers have isn't with the state for the most part. It's more with local governments, particularly in the rural areas," said Kent Flanagan, director of the Tennessee Coalition for Open Government.

TCOG is a nonprofit alliance of citizen, professional and media groups, includi ng The Associated Press. The group is committed to promoting government transparency.

Flanagan applauded the governor's decision not to impose across-the-board fees on records requests, but noted that not all requests will necessarily appear reasonable to records custodians at first blush.

"There have been some really outstanding investigative efforts over the years involving lots of records, and those have resulted in some interesting discussions about how much to pay for them," he said.

Questions also remain about whether government agencies should be allowed to provide paper copies when electronic versions exist.

"Can you get the original electronic forms so you can take the spreadsheet and play with it?" Flanagan said. "They'd rather give you paper so it can make it hard to deal with."

Flanagan said another challenge for the public is the hundreds of exemptions to the open records law that lawmakers have approved over the years. For example, the Legislature this year enacted laws to make confidential the names of all but the three finalists for leadership positions in state colleges and universities, and to prevent parents from finding out the evaluation scores of teachers.

Meanwhile, Haslam's office has on several occasions invoked blanket exemptions based on attorney work product and on a deliberative process privilege that his lawyers have said is based on common law rather than any specific statute in the Tennessee Code.