Proposed City Ordinance Could Pose Legal Concerns

September 27, 2006
Dwayne Page

The Smithville Board of Mayor and Aldermen is scheduled to adopt an ordinance on second and final reading Monday night to charge for making copies of public documents, requested by the public, and for the time required by city employees to produce those documents.

The council adopted the ordinance on first reading September 18th and a public hearing will be held prior to second reading passage Monday night, October 2nd at 7:00 p.m. at city hall.

The City has sought assistance from MTAS, the Municipal Technical Advisory Service, in preparing the ordinance, which is similar to ordinances in other cities.

However a legal challenge is being mounted against Loudon County over their fee policy.

The Knoxville News Sentinel, in their Wednesday, September, 20th edition, reported that a Chancery Court petition for declaratory judgment and injunctive relief has been filed on behalf of three Loudon County residents.

Loudon County's policy requires that those seeking access to county records come to the county mayor's office and fill out a form. Applicants must pay $25 an hour plus 25 cents per page for copies; and there is a non-refundable minimum charge for the first hour that must be paid up front.

According to the state's attorney general, local governments can't charge for employees' time spent fulfilling a public records request. That from Frank Gibson, executive director of the Tennessee Coalition for Open Government.

According to Gibson, the attorney general says the only thing the law and the Tennessee Supreme Court has said is allowable under Tennessee law is the cost of the copies.

Under the proposed Smithville ordinance, fees for inspection and copying of city records shall cover the costs of retrieving, supervising access to, and inspection of, and reproduction of records.

\"Such fees shall be as follows: seventy five cents per page for each photostatic copy provided by the city. Fees for items such as, but not limited to, cd roms, computer disks, and audio/video cassettes, will be assessed at the rate paid for such items by the city. Actual personnel costs related to time spent retrieving and accessing records based upon each involved employee's effective hourly rate of pay, including benefits. Actual personnel costs related to time spent supervising access to and inspection of or reproduction of records based upon each involved employee's effective hourly rate of pay, including benefits.\"

The proposed ordinance states that \"All fees for purposes identified in this chapter shall be due at the time such costs are incurred. If multiple copies are requested or copies are requested that require more than minimal time for retrieval, the City of Smithville may require a reasonable deposit for the estimated cost which must be paid prior to the retrieval of the records and prior to the commencement of copying said records. If the city employee involved in the retrieval and copying of records determines that the costs of retrieval will exceed the amount of the deposit, the city employee involved in the search and retrieval shall request an additional deposit sufficient to cover the estimated cost. No reproduction fee shall be assessed, other than the photostatic copy fee of seventy five cents per page, when an employee of the City of Smithville determines that the cost of charging and handling the fee exceeds the cost of providing a copy without charge.\"

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