                                                                                         07/13/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 May 16, 2017 Session

              RICKEY JOE TAYLOR v. TOWN OF LYNNVILLE

                    Appeal from the Chancery Court for Giles County
                         No. 6496    David L. Allen, Judge


                            No. M2016-01393-COA-R3-CV



BRANDON O. GIBSON, J., concurring.

       I concur in the majority’s opinion, but I write separately to express my concern
regarding one facet of statutory interpretation in this case.

       Tennessee Code Annotated section 10-7-503(a)(7)(A) provides that “[a] records
custodian may not require a written request or assess a charge to view a public record
unless otherwise required by law . . . .” (Emphasis added.) Thus, only if Tennessee
statutes otherwise require a written request or assessment of a charge may a records
custodian withhold access to public records. Section 10-7-503(a)(7)(C)(i) then goes on to
say that “[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.”
Section 8-4-604(a) requires that the office of open records counsel establish “[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.”

       Our primary task is to interpret the statutory text. Section 10-7-503 prohibits
charges to view public records (unless otherwise required by law), but it also
permissively allows the collection of “reasonable costs incurred in producing” the
material. In my opinion, confusion arises with respect to “producing the requested
material.” What exactly does production entail? Is production the gathering and
compilation of multiple years of Board of Mayor and Aldermen meeting minutes, as was
a portion of the request in this case? Or is “production of the requested materials” only
copying or otherwise reproducing the requested materials?

      Some historical perspective furthers the confusion. The Tennessee Public Records
Act (“TPRA”) was amended in 2008 with several significant changes. One of those
changes was to create the Office of Open Records Counsel (“ORC”), and the ORC was
directed to establish the “Schedule of Reasonable Charges” referenced above. Tenn.
Code Ann. § 8-4-604. However, section 10-7-503(a)(2)(C) addressed how fees for
copies of records could be assessed until the ORC could create the Schedule of
Reasonable Charges. When passed, section 10-7-503(a)(2)(C) provided:

       (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.

2008 Tenn. Laws Pub. Ch. 1179 (S.B. 3280).

       Thus, it would appear that the Tennessee General Assembly’s original intent was
to allow a governmental entity to charge for labor costs associated with (a) making copies
and (b) producing the requested information. Given that the statutory text originally
separated these two tasks, the plain statutory language leads me to believe that they are
not one in the same. However, that statutory text was deleted upon the ORC’s adoption
of a Schedule of Reasonable Charges.

       According to the ORC’s Schedule of Reasonable Charges, a records custodian
may not charge for inspection of public records, but it is entitled to charge for copies if
copies are requested. Additionally, if, and only if, copies are requested, the records
custodian is permitted to charge for labor, but only those labor charges associated with
                                              2
the documents for which copies are requested. The Schedule of Reasonable Charges
defines “labor” as “the time (in hours) reasonably necessary to produce requested
records, including the time spent locating, retrieving, reviewing, redacting, and
reproducing records.” The Schedule of Reasonable Charges then goes on to say that the
governmental entity is allowed to charge for labor exceeding a one (1) hour labor
threshold or a higher labor threshold if such is adopted by the governmental entity.

        Applying the ORC’s Schedule to a hypothetical situation demonstrates the oddity
of the statutory provision, given the deletion of 503(a)(2)(C) and the implementation of
the Schedule of Reasonable Charges. An individual could request to inspect the minutes
of forty years’ worth (or more) of city council meetings, every contract ever entered into
between a city and a third party, and every other document, paper, letter, and map
connected with the transaction of official business by any governmental entity. See Tenn.
Code Ann. § 10-7-503(a)(1). Under such a circumstance, the governmental entity may
not charge for any labor costs associated with such a voluminous request. However, if
the individual asks for copies, the entity may then charge for labor costs, but only for the
labor associated with the documents of which copies are requested. Given the language
the general assembly chose in 2008, although deleted by operation of the statute itself,
this result seems non-sensical. Yet, just such a result is required by the plain language of
the statute in its current form and the Schedule of Reasonable Charges. And for that
reason, I must concur.



                                                 _________________________________
                                                 BRANDON O. GIBSON, JUDGE




                                             3
