Municipal records must be open to the public during regular business hours. A municipality has no legal authority to charge any fee for viewing and inspecting public records. T.C.A. § 10-7-123. If a citizen wants to merely view a public document, no fee can be assessed.
More often, however, the citizen will want a copy of the requested materials. If the record is open, the requestor has a right to that copy as the right to inspect public records includes the right to make copies. T.C.A. § 10-7-506(a). Municipalities may adopt and enforce reasonable rules governing the making of copies of public records. Id. Before any costs can be assessed, a municipality must first adopt a policy setting reasonable charges.
Assessing costs associated with copying public records was a murky endeavor. The 2008 legislative session, however, charged the Office of Open Records Counsel with providing municipalities a schedule of fees. Municipalities are not required to adopt this schedule; however, if a city’s charges are higher it can be required to produce documentation justifying the difference. MTAS strongly encourages every municipality to align its fees with the schedule. See Schedule of Reasonable Charges for Copies of Public Records for reference to the Office of Open Records Counsel's Schedule of Reasonable Fees. The schedule is reviewed annually and is subject to change.
T.C.A. § 10-7-504(f) suggests that confidential personnel information should be redacted wherever possible, and confidential information in the requested record cannot be used to limit or deny access.
In addition to copy costs, the schedule of fees allows municipalities now to charge for certain labor costs associated with fulfilling records requests. Labor as defined by the schedule is “the time reasonably necessary to produce the requested records and includes the time spent locating, retrieving, reviewing, redacting and reproducing the records.” When assessing labor costs, a municipality can charge the hourly wage of the employee completing the request. The hourly wage is based on the base salary of the employee and does not include benefits.
Municipalities may recover all labor costs exceeding one hour required to complete a records request. When request production involves more than one employee, the schedule offers the following formula for calculating labor costs:
In calculating the charge for labor, a records custodian shall determine the number of hours each employee spent producing a request. The records custodian shall then subtract the one (1) hour threshold from the number of hours the highest paid employee(s) spent producing the request. The records custodian will then multiply the total number of hours to be charged for the labor of each employee by that employee’s hourly wage. Finally, the records custodian will add together the totals for all the employees involved in the request and that will be the total amount of labor that can be charged.
A municipality has the authority to waive costs for copying records when they are requested by a public official. MTAS suggests a policy of assessing no copying charges for requests made by public officials where the total cost, as prescribed for the general public, would not exceed $25. For larger requests, where costs are above the limit, department heads should have the option to waive these fees when it is in the best interest of the municipality.
If a requesting party is not physically present and the requested records must be physically sent to the requester, case law states that cities may recover actual costs associated with delivery of the records. Waller v. Bryan, 16 S.W. 3d 770 (Tenn. Ct. App. 1999).