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Sunday, May 25, 2008 , 12:00 a.m.

Griscom: Straight talk on keeping open access

There is some irony that any politician would travel around in a vehicle labeled “straight talk.” For those who are in the business of crafting rules, regulations and laws, the rule of thumb is to avoid such talk at all costs. Ambiguities are preferred. Interpretation is left in the hands and eyes of the user, and it means a steady flow of lobbyist business either to clarify or further muddy the law.

Two glances inside the legislative process are all that is required to discover the sleight of hand that goes on in crafting laws and accompanying applications.

Find a technical correction bill and explore what is being corrected. Often the answer is closing a loophole or opening a new loophole, which results in a future technical correction. Bureaucrats sometimes find the holes to be plugged, but often a lobbyist suggests the fix. This is the hamster approach to government: You never get off the wheel of fortune.

Reading the history that accompanies legislation is also instructive. The attached words receive minimal review but they speak volumes. These history lessons supposedly sketch out the intentions of those who supported or opposed provisions of law. Regulators as well as lawyers use the legislative history as guidelines, and interpretations rarely reflect original intent.

So writing or leaving in ambiguities is the full-service approach for those who hover around lawmakers and the legislative process.

Tennessee witnessed ambiguity in action for more than 30 years.

The Open Records and Open Meetings laws designed to embrace public access to government were ambiguous from passage in the 1970s. Up to four days ago, the clarity came by creating more exceptions to having to observe the provisions of open government.

Having used the Open Meetings and Open Records laws frequently, the Times Free Press knows firsthand the requirement of having a lawyer in tow to pry loose information that, according to legislative intent, should be available to any citizen for review during normal business hours. The expanse of new technology should have made information requests quicker and less expensive — but that has not been the case.

If the hurdles are difficult for the Times Free Press to jump, the citizen who requests information too often leaves frustrated and empty-handed.

Tennessee lawmakers approved changes to the Open Records law, and time is well spent to be more educated on the efforts to remove ambiguities that are used by government record keepers to withhold information:

* Record keepers have seven days to provide documents or to explain in writing why they will not be provided or why an extension is required.

* No charges will be made for inspecting documents unless there is a requirement to assess a fee.

* Redactions do not count as a new record.

* The first five hours to provide a document are free; the records will be provided in any electronic format (if available); large-volume requests will be provided in the most efficient, cost-effective manner; the use of copying equipment and scanners by the requester is permitted.

* Judicial remedy for noncompliance is extended to Circuit Court in addition to Chancery Court.

* Training will occur for government, school board and public hospital officials on Open Record compliance.

There is one remaining ambiguity to be fixed.

Excessive fees as a means of stymieing record production will be on a more even ground. The previous law provided an unwieldy interpretation of appropriate fees. An advisory panel will be created to assist the open records counsel in establishing a more rational fee plan. There is hope that the notion will be no more that the cost of an electronic file, moved and dropped to a computer disk, is comparable to printing a file in a paper format.

When one remembers that the Open Government laws are “an integral part of the routine duties and responsibilities of public officers and employees and that excessive fees and other rules cannot be used to hinder access,” then perhaps some of the ambiguities will not creep back.

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