Heard this week in Tennessee three bills harmful to open government; bills violate several constitutional provisions and legal doctrines.
SB1951 / HB1875 will be heard on Tuesday, April 12. It allows citizens to be charged to view a public record and, if left un-amended, will allow citizens to be charged a fee for a portion of the actual production of the record, not just for the creation of photo copies as the law exists now (see below).
Bill Threatens to Break Several Legal Doctrines
Bill 1299/House Bill 1920 will be heard in the House Judiciary Subcommittee on April 13. The bill would decrease the number of publications necessary prior to foreclosing on a property from three to one, decrease relevant information contained in the notice, and the bill states that the law would allow errors in the public notice. EPPC finds that this bill violates several important constitutional and judicial doctrines such as constructive notice, due process, fundamental fairness and the vagueness doctrine (see below).
Senate Bill 115 and House bill 284 creates a pilot project in Knox County to allow public notices to be posted on the Internet rather than in a newspaper. The bills will be heard in the Senate State and Local Government Committee on April 12 and in the House Judiciary Committee on April 13, 2011. EPPC's Issue Brief examines many of the important principles that this idea violates, and questions the need for this legislation (see below).
Bill Would Charge You to View a Public Record
Bill allows citizens to be charged to view a public record and, if left un-amended, will allow citizens to be charged a fee for a portion of the actual production of the record, not just for the creation of photo copies as the law exists now.
1. Article 1, Section 1 of the Tennessee constitution reads: All power inherent in the people — Government under their control. That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.
How can the people be reasonably considered to be in control of their own government if they are to be charged a fee for viewing the records of that government? How can the people retain the unalienable and indefeasible right to alter, reform or abolish the government if they are to be charged a fee to access the records of that government. A fee creates an encumbrance to freedom, an unreasonable policy for access to information, an encumbrance to discovery over compliance with the rule of law, and an unreasonable barrier to reform of the government.
2. If your money is taxed away from you, you have a right to know the purpose and to see the evidence for whatever it is your taxes are paying.
3. The people do not yield their sovereignty to the government agencies that serve them.
4. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.
5. The people insist on remaining informed so that they may maintain control over the instruments that they have created.
The work contained in public records is work for which the people have already paid through their taxes, and the viewing of this work should not impose an additional tax on the people.
Inspection fee is an injustice to citizens. Cash Cow to Government.
It is no secret that some elected officials, government officials and employees there of do not like being asked for public records – however, it is the right of every Tennessean to view or obtain copies of any public record that is not considered confidential by law.
This bill would create a $1.7 million in additional revenue for state and local government while closing government to citizens who merely want to make sure their government is operating as it should.
This bill would remove the provision in the TCA that disallows assessment of a fee to inspect or view a public record. Current law states in 10-7-503 (a) (7) (A) “ a records custodian may not require a written request or assess a charge to view a public record. This bill would delete “or assess a charge” from the law. Citizens can control the activities of their government only to the extent that they are able to know what their government is doing and how their tax dollars are being spent. Citizens own their government and all records held by their government. To assess a fee to citizens to view public records is a grave injustice to the citizens and to democracy, and will certainly prevent some from pursuing records.
Bill’s provision to charge a fee for actual labor costs for producing the records is broad and open to ethical problems.
Under current law a records custodian may not charge for inspection or viewing of public records - 10-7-503 (a) (7) (A). However, a custodian may charge for copies or duplication of records (TCA 10-7-506). A schedule of charges set by the Open Records Counsel of the state of Tennessee sets the rate at 15 cents per page and 50 cents per page for color copies.
Never to be taken into consideration is the reason for which records are requested – whether personal, educational or commercial.
An additional fee is allowed for some records which may have commercial value such as for maps or geographic data – however, this additional fee may not be charged to persons requesting these materials for personal use or to the news media – such pays no cost to view a record of commercial value or for the production of that record but only the cost of reproduction of any requested copies.
For those seeking the records for commercial value, the Open records Counsel of the state of Tennessee has created a schedule to help determine a fair rate for records of commercial value to include “labor charges” – time necessary to locate, retrieve, review, redact, and copy the records, the use of an outside vendor to produce copies of any maps or geographic data, or any cost for retrieval from outside archives or other storage which may impose a cost to the records custodian. In addition, the law allows for the recovery of actual development of the record at a fraction of the actual cost - 10-7-506(c).
SB1951 / HB1875 will, for the first time, allow an additional fee similar to the fee charged for commercial records of value, such as for maps or geographical information, to be charged for all records – even to individuals and to the news media.
Burden of Production.
The legal doctrine of burden of production is an obligation to come forward with sufficient evidence to support a particular proposition of fact. Taxpayers spend a great deal of money to support their government. It is not unreasonable that government should always have upon it the burden to produce evidence of its work, without charge, for the public to inspect.
Bill Threatens to Break Several Legal Doctrines
Bill 1299/House Bill 1920 will be heard this week. The bill would decrease the number of publications necessary prior to foreclosing on a property from three to one, decrease relevant information contained in the notice, and the bill states that the law would allow errors in the public notice. Important constitutional and judicial doctrines such as constructive notice, due process, fundamental fairness and the vagueness doctrine are violated by this bill.
Bill Violates the Legal Doctrine of Constructive Notice
This bill decreases the number of publications for the public notice from three to one – thus violating a legal canon called constructive notice; the publication of a public notice three times. Courts allow constructive notice as a relief from liability for any claim of ignorance of the action. Should a debtor willfully avoid notice by not opening their mail or claiming that they never received the notice of foreclosure the maxim of constructive notice provides protection for the bank or other entity; it is allowed by courts as legal proof that notice of the action was provided to the individual and or to the community.
Violates Procedural Due Process, Fundamental Fairness Doctrine and Vagueness Doctrines.
Procedural due process of the law provides that any government action that unfairly deprives an individual of life, liberty, or property is unconstitutional. This bill changes the standard description of property used for generations in foreclosure matters whereby one can easily identify through the ad the property being taken. This bill would require only a “concise” description of the land in question; which means only a reference to the deed book and page in the county register of deeds office that contains the complete legal description of the property – it is not reasonable to believe that most citizens would be able to understand that the legal notice of foreclosure is identifying their property by reading such a technical description in the newspaper thus a procedural violation of due process would exist.
An additional violation of due process set forth by the language of this bill is found in language that states “Any error or defect in the common description of the land shall not in any way void any sale of the land.” This violates what is called the fundamental fairness doctrine which is synonymous with due process.
The vagueness doctrine is a legal principle which states that law that does not provide a “person of ordinary intelligence a reasonable opportunity to know what is prohibited, proscribed or claimed” is unconstitutionally vague. This bill seems to allow language in legal notices which is intentionally vague and lacking in commonly useful information by changing the level of detail and standard description historically used to identify the property being taken.
Bill on Public Notice Seeks to End Publication in First Major Tennessee County
Senate Bill 115 and House bill 284 creates a pilot project in Knox County to allow public notices to be posted on the Internet rather than in a newspaper. The bills will be heard in the House and in the Senate this week.
The Purpose of Public Notices.
The policy of publishing public notices is built upon an important principle behind our Constitution and state law – that is, if the government intends to take some action that will limit or change our rights, or that may take our property, then government must go out and seek to provide public notice to the community.
Premise of the Bill is a Red Herring.
The stated premise of the bill, to allow legal notices to be posted on the Internet is a red herring because a local government simply does not need permission from the Tennessee General Assembly to post public notices up on a website.
Bill Harms Democratic Process – Creates Less Informed Citizenry – Saves Little Money.
Lack of Internet Access a Problem in Tennessee.
Many still lack internet access in Tennessee. Studies show that 57% of adults over the age of 65 do not use the Internet. 52% of Hispanics do not use the Internet. 49% of African Americans do not use the Internet. Among non high school graduates, only 25% use the internet, and less than 50% of people that have only graduated from high school have access. It is simply not reasonable to expect that any of these people would know when a public notice vital to their interests should be sought.
Hypothetical Reasonable Person Doctrine vs Reasonable Government.
Currently, public notice requirements operate in a way that provides for reasonableness in government relations with citizens. This is because the community cannot be reasonably expected to know when to seek information from the government to learn what actions may be taken.
This bill reverses this concept and places the onus on the citizen to seek public notices, by internet or by visiting a government office, rather than by using the historically successful means of community publication.
However, how is a reasonable person to know when he or she should seek to retrieve a notice? The maxim of the hypothetical reasonable person states that a reasonable person behaves in a way that is legally appropriate - a reasonable person will behave in a way that protects their own interests or their rights. A zoning change, annexation, tax increase, or even an election holds some interest for the reasonable person.
Publication in the Community Forgoes Ethical and Legal Questions.
Currently citizens do not have to bicker with government over the publication of public notices in the Community. Newspaper publication provides proof to each side that a notice was published in an appropriate newspaper of general circulation For the government to take over this responsibility lays the process open to ethical and legal questions over the posting, accuracy, timeliness and even criticism over the location and appearance of the notices on the government web site.
Bill Expands Local Government – Estimated Cost is Not Realistic.
This bill expands local government by establishing a new responsibility. Yet, the fiscal note on the bill claims that there will be no expense to the county for the implementation of this bill. Newspaper employees take care to make sure that public notice is accurate before printing, that notices are archived and that a legal affidavit is always produced and available to prove publication of public notices. The county government’s idea to create and maintain a searchable website for public notices is not a simple one. Public notices have intricate legalities that must be seen to in order to avoid liability. The fiscal note on the bill does not take into account website fabrication, server storage, or a worker to ensure that the notices and publication meets the law.
