Tenn. Comp. R. & Regs. 1720-01-11-.05 - FEES AND CHARGES FOR PUBLIC RECORDS; PROCEDURES FOR BILLING AND PAYMENT

(1) Unless charges are waived (Section 5.1.5), the PRRC must charge the requestor for all reasonable costs the University incurred to produce copies of the public records requested by the requestor ("production costs").

(a) Production costs include copying costs (Section 5.5), labor costs (Section 5.6), and delivery costs (Section 5.7).

(b) Charges for production costs should not be used to unlawfully hinder access to public records.

(c) The Schedule of Reasonable Charges for Copies of Public Records, published by the Office of Open Records Counsel, will be used as a guideline to determine the amount that a requestor will be charged for production costs.

(d) No charges will be assessed for copies of public records unless the production costs exceed five dollars ($5).

(e) When the production costs exceed five dollars ($5), the production costs may be waived by the PRRC in the following circumstances:

1. When the requestor is an employee of a federal, state, or local government agency acting in the requestor's official government capacity;

2. When the requestor is a current employee of the University who has requested copies of the requestor's personnel records; and

3. Other circumstances in which the PRRC determines, after consultation with appropriate University employees, that such a waiver is in the best interest of the University.

(f) Production costs associated with aggregated records requests (Section 5.10) will not be waived.

(2) There must be no charge for the inspection of public records unless required by law. However, the PRRC is not prohibited from charging the requestor for production costs if the requestor requests copies of public records after requesting to inspect public records, but the PRRC may charge the requestor only for the production costs reasonably attributable to the copies requested by the requestor.

(3) A PRRC, working with the records custodian, must promptly respond to a public records request for copies in the most economic and efficient manner practicable as determined by the PRRC.

(4) Estimate of Production Costs and Pre-Payment of Production Costs

(a) The PRRC must provide a requestor with an estimate of the production costs prior to producing copies of records unless:

1. Production costs are estimated to be less than five dollars ($5) and, thus, no charges will be assess for copies of public records (Section 5.1.4); or

2. Charges for production costs are waived (Section 5.1.5).

(b) The PRRC may use an estimate of production costs form to provide a requestor with an estimate of the production costs.

(c) When estimated production costs are more than fifty dollars ($50), must require prepayment of at least fifty percent (50%) of such production costs before beginning the process of producing the requested records. The University is not bound by the estimate of the production costs.

(5) Copying Costs

(a) Copying costs include the costs related to making copies of the public records requested by the requestor by photographic or other means of duplication.

(b) Copying costs must be as follows:

1. The PRRC must assess a charge of fifteen cents ($0.15) per page for each standard 8 1/2 x 11" or 8 1/2 14" black and white copy produced.

2. If a public record is maintained in color, then the PRRC must advise the requestor that the record can be produced in color if the requestor is willing to pay the higher charge for a color copy. If the requestor then requests a color copy, then the PRRC must assess a copy charge of fifty (50) cents per page for each 8 1/2 x 11" or 8 1/2 x 14" color copy produced.

3. The charge for a duplex copy must be the same as the charge for two (2) separate copies.

4. If a copy of a public record is produced on a medium other than 8 1/2 x 11" or 8 1/2 x 14" paper, then the PRRC must assess a copy charge equal to the actual cost of producing a copy of the public record, taking into consideration the amount of material, equipment costs, and the cost of the alternative medium.

5. The PRRC is not obligated to provide electronic copies of the requested records when the requested records are not maintained electronically. When the requested records are maintained electronically the PRRC generally will produce electronic copies of the requested records in a secure, read-only format. When providing electronic copies of public records, the PRRC may charge per-page copying costs only when paper copies that did not already exist were required to be produced in responding to the request, such as when an electronic public record must be printed to be redacted. When records that are maintained electronically need to be redacted, the PRRC may produce paper copies of the requested records in lieu of electronic copies.

6. The PRRC may charge the actual costs for flash drives or similar storage devices on which electronic copies are provided.

(c) Labor Costs

1. The PRRC must charge the requestor the hourly wage of the employee(s) reasonably necessary to produce the requested records above the labor threshold.

(i) The "labor threshold" is the labor of the employee(s) reasonably necessary to produce requested records for the first hour incurred by the University in producing the records.

(ii) "Labor" means the employee time reasonably necessary to produce the requested records and includes the time spent locating, retrieving, reviewing, redacting, and reproducing the records.

(iii) The "hourly wage" is based upon the employee(s) base salary and does not include benefits.

2. In calculating the labor costs to be charged to the requestor, the PRRC must:

(i) First, determine the number of hours each employee spent producing the requested public records;

(ii) Second, subtract the one (1) hour labor threshold from the number of hours the highest paid employee spent producing the request;

(iii) Third, multiply the total number of hours to be charged for the labor of each employee by that employee's hourly wage; and

(iv) Fourth, add together the totals for all the employees involved in the request to determine the total amount of the labor costs to be charged to the requestor.

3. Labor costs should be tracked based on tenths of an hour, rounded down.

4. The PRRC should strive to ensure that current employees with the lowest practicable hourly wage be used to fulfill public records requests. However, the PRRC has the discretion to determine that it is more cost effective to utilize a higher-compensated employee if he/she can accomplish the task more efficiently, which may result in lower total labor costs.

(d) Delivery Costs

1. The PRRC must charge the requestor for the costs incurred by the University in delivering the records to the requestor.

2. Copies will be available for pickup at a location specified by the PRRC.

3. Upon prepayment for postage, copies will be delivered by the United States Postal Service to the address identified by the requestor.

4. In the discretion of the PRRC, copies of public records may be delivered through other means, including electronically.

(e) If the PRRC utilizes an outside vendor to produce copies of the requested records, then the PRRC must charge the requestor for the actual production costs charged by the vendor to the University.

(f) Payment for Production Costs

1. The PRRC has the discretion to determine how payment for production costs must be made (e.g., cash, check, credit/debit card).

2. As stated in Section 5.4, when estimated production costs are more than fifty dollars ($50), the PRRC must require pre-payment in full of the estimated production costs before beginning the process of producing the requested records.

3. The PRRC must require full payment of the actual production costs before copies of public records are delivered or otherwise made available to the requestor. If the actual production costs exceeds the estimated production costs, then the PRRC must collect the difference between the actual production costs and the estimated production costs before copies of public records are delivered or otherwise made available to the requestor. If the actual production costs are less than the estimated production costs, then the PRRC must refund the difference between the estimated production costs and the actual production costs when copies of public records are delivered or otherwise made available to the requestor.

4. When actual production costs are more than fifty dollars ($50.00), then the PRRC must ensure that the production costs collected by the PRRC are distributed to the appropriate University units in proportion to the costs incurred by each unit in responding to the request.

(g) Aggregation of Frequent and Multiple Requests

1. The University will aggregate record requests in accordance with the policy on Reasonable Charges for Frequent and Multiple Requests promulgated by the Office of Open Records Counsel when more than (4) requests are received within a calendar month (either from a single individual or a group of individuals determined to be working in concert).

2. The level at which records requests will be aggregated is by campus or institute.

3. The PRRC is responsible for making the determination that a group of individuals are working in concert. The PRRC must inform the individuals that they have been deemed to be working in concert and that they have the right to appeal the decision to the Office of Open Records Counsel.

4. Routinely released and readily accessible records excluded from aggregation include, but are not limited to:

(i) Materials for meetings of the Board of Trustees and Board committees; and

(ii) Other records determined by the PRRC.

Notes

Tenn. Comp. R. & Regs. 1720-01-11-.05

Public necessity rule filed October 31, 2008; effective through April 14, 2009. Public necessity rule filed October 31, 2008, and effective through April 14, 2009, expired effective April 15, 2009, and rule reverted to its previous status. Original rule filed February 26, 2009; effective June 26, 2009. Repeal filed September 26, 2017; effective December 25, 2017. New rules filed December 10, 2018; effective 3/10/2019.

Authority: T.C.A. §§ 10-7-503, et seq.; 10-7-506(a); 49-9-209(e); Public Acts of Tennessee, 1839-1840, Chapter 98, Section 5; and Public Acts of Tennessee, 1807, Chapter 64.