Gallatin officials say they plan to review the city’s open records policy after the Gallatin News raised questions about a $54.53 hourly labor charge to obtain emails about construction complaints regarding the new Facebook data center project.
The newspaper was notified by the city last week that it would cost $459.14 to obtain an electronic copy of 50 emails related to eight complaints that have been made about the ongoing construction project.
“It’s certainly not the city’s intent to price gouge anyone,” City Attorney Susan High-McAuley said when asked about high hourly labor charges. “The city’s intent is to be open and thorough in our searches. If we need to refine that, perhaps that is something the city needs to look into. I have recommended that the mayor, the I.T. director and I meet to… determine if there is a more efficient and cost-efficient way (to fulfill open records requests).”
On Oct. 9, the Gallatin News filed a public records request with the city recorder’s office seeking documents and emails related to complaints that had been made regarding construction-related activities associated with the $800 million Facebook data center project.
Gallatin Economic Development Agency Executive Director James Fenton provided the newspaper with a spreadsheet detailing eight total complaints his office was tracking along with 22 related emails on Oct. 12. There was no labor cost charged for the request.
Two days later, the newspaper was notified by the city recorder’s office that 50 additional emails had been located by its information technology department and would cost $459.14 in order to obtain an electronic copy of the documents. According to an attached “Records Request Estimate of Reasonable Charges” form, the labor cost charged was $54.53 per hour for 8.42 hours of work. The city does not charge for the first hour of work.
“I didn’t realize that’s what the rate is,” Mayor Paige Brown said when asked about labor charges. “That does sound ridiculous, but I guess it’s based on (the employee’s) rate of pay.”
All requests for emails are handled by the city’s Chief Information Officer Lori Smiley, who said the decision to only have her conduct the searches was made due to the potential legal liability of the work and to “ensure everything is found and there is total transparency.”
“I forget how many thousands of records that particular (email search) generated,” Smiley said about the Gallatin News’ request. “Then I have to go through and make sure that I get all of the ones that are responsive to the request and make sure that those do not have anything that has something (that) can’ t be released like personal information. That’s why those (types of) requests take so long.”
While state law does allow cities to charge for labor, “one big problem” is that there is no set limit for the hourly rate or total amount of time a city can charge for public records requests, according to Deborah Fisher, executive director of the Tennessee Coalition for Open Government.
However, nothing prevents a government entity from making information available freely if it serves the public good.
“Is the hourly rate of $55 too much?” Fisher said. “Yeah, it probably is. Most people don’t make $55 an hour, so they would actually have to work more hours than the I.T. (director) worked to be able to afford to see a public record that has already been paid for and supported by Tennessee taxpayers.”
Fisher noted that state law does allow for individuals to inspect records for free, which Gallatin officials say often occurs. However, that too can come with some restrictions such as not allowing individuals to take photographs of documents.
According to Gallatin’s open records policy, “a requestor will not be allowed to make copies of records with personal equipment” and must purchase storage devices from the city upon which the records will be downloaded.
The lack of a limit in state law for labor rates and how many hours a government entity can charge for records requests can be problematic, according to Fisher.
“I’m not saying this is what Gallatin did, but… it sets up a system where it makes it very easy to inflate the charges by inflating the amount of time it takes to do something or by assigning someone to the task who makes a high hourly rate,” Fisher said. “The second thing it does is it eliminates any incentive that a government entity might have to organize its records in a more retrievable fashion, to work efficiently or to retain records in such a way that they don’t require so much review and redaction.”
While she is unsure who else could handle email records requests for the city since the person performing the search could potentially see sensitive personal information, Brown said she is “always amenable to improving the situation.”
According to Fisher, individuals who request electronic records also need to be smarter about what they ask for and more communication is needed between requesters and government entities.
“There is a problem with unlimited labor charges, but on the other hand there is also a problem with records requestors who basically make such broad requests that require (dozens) of hours of labor,” Fisher added. “There could be a lot done on both the custodian side and the requestor side on the email problem in terms of public records requests.”