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In Re Tennessee Office of Open Records Counsel Tn Agency Opinion Labor Fees Public Records Disclosure 2010

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STATE OF TENNESSEE

COMPTROLLER OF THE TREASURY
OFFICE OF OPEN RECORDS COUNSEL
James K. Polk State Office Building
505 Deaderick Street, Suite 1600
Nashville, Tennessee 37243-1402

Justin P. Wilson
Comptroller

September 3, 2010
Mr. Andrew Clarke
6250 Poplar Avenue
Second Floor
Memphis, Tennessee 38119
You have requested an opinion from this office that addresses the following issue:
Can a fee be assessed for the labor associated with gathering records responsive to a public records request
when the requestor only wants to inspect the records?
I. Background
Your request for an opinion is based upon correspondence that you received from an attorney who represents
Corrections Corporation of America (hereinafter “CCA”). In April 2007, Alex Friedmann made a public records
request to CCA for a variety of records related primarily to lawsuits and settlements involving CCA and certain
contracts between CCA and Tennessee state and local governmental entities. Friedmann v. Corrections Corporation
of America, 310 S.W. 3d 366, 369-370 (Tenn. Ct. App. 2009). Mr. Friedmann subsequently filed a public records
lawsuit due to the fact that CCA denied his request based upon the corporations belief that:
(1) that it was a private corporation and not subject to the Public Records Act; (2) CCA was not operating as
the functional equivalent of a governmental agency; (3) even if CCA was subject to the Public Records Act,
many of the requested documents nevertheless exceeded the scope of the Public Records Act because they
were protected by the attorney work product doctrine or sealed by order of a court; (4) many of the requested
documents were obtainable by Plaintiff either through the applicable court clerk's office or the
governmental agency with which CCA had contracted; and (5) gathering all of the requested documents
would be overly burdensome.
Id.
The trial court held that “ . . . Corrections Corporation of America (hereafter CCA) contracted with the State of
Tennessee to build and operate some of its prisons . . . for purposes of the Tennessee Public Records Act, CCA is
operating as the functional equivalent of a state agency.” Id. at 371. Certain records maintained by CCA were held to
open to public inspection. Id. An appeal was filed and on September 16, 2009, the Tennessee Court of Appeals
released the Friedmann v. Corrections Corporation of America opinion. 1 The court affirmed the lower courts ruling
with regard to the functional equivalency issue and again determined that certain records maintained by CCA are to be
1

The Court of Appeals originally released an opinion in this case on August 5, 2009. However, the Court granted Mr.
Friedmann’s Petition to Rehear and as a result, withdrew its original opinion and addressed the new arguments made in the
opinion released September 16, 2009. Id. at 368.
Phone (615) 401-7891 ● Fax (615) 741-1551 ● E-mail open.records@tn.gov

September 3, 2010
Page 2 of 3

open to inspection. Id. at 380. The case was remanded to the lower court for a determination as to whether or not any
of the requested records do not constitute “public records” and whether or not any of the requested records are
confidential because they constitute attorney-client privilege communications or attorney work product. Id. at 381.
Based upon the correspondence between the attorney representing Mr. Friedmann and the attorney representing CCA
(Attached “Exhibit 1” and “Exhibit 2”), it appears that significant discussion has taken place regarding Mr.
Friedmann’s ability to inspect certain of the requested records; however, it also appears that CCA is taking the
position that it will only make those records available for Mr. Friedmann’s inspection if he agrees “to cover CCA’s
production costs in excess of one hour.”2
II. Analysis
When the Tennessee Public Records Act (hereinafter referred to as the “TPRA”) was amended in 2008 with the
passage of Public Chapter 1179, Acts of 2008 (Attached “Exhibit 3”), several significant changes were made. First,
the General Assembly declared through language that is clear and unambiguous that “A records custodian may not . . .
assess a charge to view a public record unless otherwise required by law.” Tenn. Code Ann. Section 10-7503(a)(2)(7)(A). Additionally, this office was established pursuant to Tenn. Code Ann. Section 8-4-601 et. seq. Tenn.
Code Ann. Section 8-4-604 directed the office to establish the Schedule of Reasonable Charges. The provision reads
in part:
(a) The office of open records counsel shall establish:
(1) A schedule of reasonable charges which a records custodian may use as a guideline to charge a citizen
requesting copies of public records pursuant to Title 10, Chapter 7, Part 5.
Tenn. Code Ann. Section 8-4-604. As is clearly indicated by the language of this provision, the Schedule of
Reasonable Charges is only applicable when copies or duplicates or records are requested.
Tenn. Code Ann. Section 10-7-503 was amended to address how fees for copies of records could be assessed until the
Schedule of Reasonable Charges was developed. When passed, Tenn. Code Ann. Section 10-7-503(a)(2)(C) read:
(i) Until the office of open records counsel develops a schedule of reasonable charges in accordance with
§ 8-4-604(a), a records custodian may require a requestor to pay the custodian's actual costs incurred in
producing the requested material; provided that no charge shall accrue for the first five (5) hours incurred
by the records custodian in producing the requested material. Such actual costs shall include but not be
limited to:
(a) The making of extracts, copies, photographs or photostats; and
(b) The hourly wage of employee(s) reasonably necessary to produce the requested information.
(ii) When such schedule of reasonable charges is developed, the provisions of subsection (a)(7)(C)(1)
shall become effective.
(iii) Following the development of the schedule of reasonable charges by the office of open records
counsel, the office of open records counsel shall notify the Tennessee Code Commission and
when the code commission receives such notice this subdivision (C) shall no longer apply and the
language in this subdivision (C) shall be repealed and deleted by the code commission as
volumes are replaced or supplements are published. 3

2

In the letter attached as Exhibit 2, the attorney for CCA discusses the fact that Mr. Friedmann has agreed, within the context of
another public records request, that CCA can assess him a fee for the production costs associated with producing records
responsive to his request to inspect. Even if Mr. Friedmann has made such an assertion, CCA has no legal authority to assess a fee
for “collection and production costs (in excess of one hour)” based upon several statutory provisions that are discussed later in the
opinion as well as the language of the Schedule of Reasonable Charges.
3
Once the Schedule of Reasonable Charges was developed, the Codes Commission was contacted and Tenn. Code Ann. Section
10-7-503(a)(2)(C) was deleted in its entirety.
Phone (615) 401-7891 ● Fax (615) 741-1551 ● E-mail open.records@tn.gov

September 3, 2010
Page 3 of 3

While the language in the abovementioned provisions addressed how fees relative to copies or duplicates of public
records were to be established and how the fees were to be assessed prior to the development of the Schedule of
Reasonable Charges, the language in Tenn. Code Ann. Section 10-7-503(a)(7)(C)(1) addresses how fees are to be
assessed now that the Schedule of Reasonable Charges has been developed. The provision reads “A records custodian
may require a requestor to pay the custodian's reasonable costs incurred in producing the requested material and to
assess the reasonable costs in the manner established by the office of open records counsel pursuant to § 8-4-604.”
Tenn. Code Ann. Section 10-7-503(a)(7)(C)(1).
On October 1, 2008, this office released the instructions for use of the Schedule of Reasonable Charges (Attached
“Exhibit 4”) and the Schedule of Reasonable Charges (Attached “Exhibit 5”). The introductory language to the
instructions reads:
. . . Public Chapter 1179, Acts of 2008, required the OORC to establish the schedule which a records
custodian may use as a guideline to charge a citizen requesting copies of public records pursuant to the
Tennessee Public Records Act, T.C.A. Sections 10-7-501 et seq.
T.C.A. Section 10-7-503(a) as amended by Public Chapter 1179, Acts of 2008, effective July 1, 2008,
specifically states in (7)(A) that a records custodian may not charge for inspection of public records unless
otherwise required by law. Until the development of the schedule, Section 10-7-503(a)(2)(C) allowed a
records custodian to charge a requestor the actual costs incurred in producing a copy or duplication, which
can include any labor incurred after five (5) hours is spent producing the requested material. With the
development of the schedule, a records custodian is authorized by TCA Section 10-7-503(a)(7)(C)(1) to
charge reasonable costs assessed in a manner consistent with the schedule.

The introductory language of the Schedule of Reasonable Charges reads:
Section 6 of Public Chapter 1179, Acts of 2008 (“Public Chapter 1179”) adds T.C.A. Section 8-4604(a)(1) which requires the Office of Open Records Counsel (“OORC”) to establish a schedule of
reasonable charges (“Schedule of Reasonable Charges”) which may be used as a guideline in
establishing charges or fees, if any, to charge a citizen requesting copies of public records under the
Tennessee Public Records Act (T.C.A. Sections 10-7-503, et seq.)(“TPRA”). . .
The TPRA grants Tennessee citizens the right to request a copy of a public record to which access is
granted under state law. Public Chapter 1179 adds T.C.A. Section 10-7-503(a)(7)(A) which expressly
prohibits a records custodian from charging a fee for inspection under the TPRA unless otherwise
required by law. However, the TPRA in T.C.A. Section 10-7-506 does permit records custodians to
charge for copies or duplication pursuant to properly adopted reasonable rules.
Based upon the above-cited provisions and based upon the fact that this office is unaware of any other provision that
would allow CCA to charge a fee for the inspection of the requested records, it is the opinion of this office that CCA
cannot assess Mr. Friedmann a fee “to cover CCA’s production costs in excess of one hour.” As is clearly indicated
by the language in the above-cited statutory provisions and the language developed by this office, the Schedule of
Reasonable Charges is only applicable when copies or duplicates or records are requested. However, if Mr.
Friedmann determines that he wants copies of all the records or a portion thereof after he inspects them, CCA is
permitted to assess him the cost of the requested copies, as well as a fee for labor that is proportional to the time that it
took to locate, retrieve, review, redact, and copy or duplicate any of the records for which he requests a copy, as long
as the fee is calculated in accordance with the Schedule of Reasonable Charges.

Elisha D. Hodge
Open Records Counsel
Phone (615) 401-7891 ● Fax (615) 741-1551 ● E-mail open.records@tn.gov



 

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