Should $79 billion state nickel, dime us to inspect public records?

By this simple form we can learn about the operations of state government.

By this simple form we can learn about the operations of state government.

By David Tulis

The general assembly is considering a pay wall for people to merely peek at state government studies, dossiers, reports, filings, grant requests and the like.

In meetings this week in Knoxville, Nashville and Jackson, officials are soliciting public comment about a proposal pushed by the Tennessee School Boards Association and others who claim their constituents are harried by open records requests that force them under deadline to produce documents for public viewing or for copying.

A bill to allow fees for the inspection of records failed in the last assembly, but the plea is being studied for a second go-round. Some agencies cite a provision in the statute allowing them to bar even the photography of records, such as by smartphone or digital camera. Independent journalist Chris Butler faced such an obstacle working on stories about Middle Tennessee State University and UT in Knoxville — “on advice of university counsel,” one PR flack told Mr. Butler.

The arguments against such proposals are in two categories — the obvious and the not so.
The obvious are that public records are paid for by taxpayers and should be open to any individual not in government who wishes to examine a state proceeding or activity. Some requesters make pests of themselves, but the state and its agents should be forbearing because public records effectively belong to the people. One opponent is Deborah Fisher of Tennessee Coalition for Open Government. The state is a democracy and only in openness can the citizenry be informed and involved in the political process, she says. Charging would be like a poll tax on records, “opening the door for arbitrary charges that would be nearly impossible to challenge,” she warns. “We know the result of that kind of system.”

Wasting a hidden form of capital

Less obvious is the alienation such fees create between smartly taxed citizens and the wealthy state.

The state of Tennessee is a political corporation whose net worth is F$79.2 billion.
State government’s total net financial position is F$31.7 billion, according to a 2014 comprehensive annual financial report, or CAFR.

Meanwhile, a state liquid capital pool disguised as a retirement fund — the Tennessee Comprehensive Retirement System — is worth more than the state itself. TCRS is valued at F$47.5 billion, including F$42.3 billion in long-term investments as of 2014. Such a giant in capitalism should not feel too pestered by gadfly activists, bloggers, community do-gooders, pokey voters with grudges, meddling taxpayers, “official” journalists from newspapers and TV stations, campaign managers and political party operatives digging up dirt on election rivals.

Tennessee government also stewards another sort of investment — a capital stock of people’s willingness to obey the law. State government has more such capital than does Washington  insofar as it does not play Uncle’s fool. People’s respect for law rises as burdensome rules are reduced, and compliance falls when they increase, economist Milton Friedman observes. Obedience falls if politicians take advantage of people’s willingness to cooperate. Without the public’s awe and fear, state planners lose their ability to achieve publicly stated goals. Charging citizens to review documents annoys members of that choice crowd that affects public opinion — the press, activists and neighborhood leaders.
Pestering a state citizen with a bill for merely ogling a floodplain report, bond schedule or an agency subsidy agreement alienates the people and feeds an already healthy atmosphere of noncompliance.

The ideal of ‘free government’

In the twilight of the national welfare state we may find little meaning in the term “free government.” But in our state constitution that ideal lives and every official who faithfully executes his oath of office understands and embodies it.

A free people are protected by a free government. That is to say, a civil authority not beholden to secret interests, hidden money and party spirit that so infects Republicans and Democrats today. Free from private control. It is free to protect life, liberty and property of the people who elect its citizen representatives. Such a government is something apart from the state as that entity is described by Martin van Creveld in his history, The Rise & Decline of the State. The government envisioned in our high law belongs to the people and serves it. It bears with the people, satisfies their desires to learn of its operations, and would never dream of hassling a ball-capped gray-headed Neighborhood Watch commiteeman for money in his open records inquiry into a local police department.

The constitution bans monopolies and perpetuities in its bill of rights, Section 22, as “contrary to the genius of a free state.” Cartels “shall not be allowed” because they are a private grant outside the marketplace, a special license securing a favored business, faction or clique. In the case of public records, a pay wall makes the state a monopoly. As librarian of the people’s business, the state excludes commoners from its stacks.

Charging fees violates the spirit of two other constitutional provisions. The bill of rights says “That the printing press shall be free to every person to examine the proceedings of the Legislature; or of any branch or officer of the government, and no law shall ever be made to restrain the right thereof” (Section 19).

Now if every member of the public has a right to be free as a journalist, charging him a fee to view a state record violates this relationship no less than might a tax imposed on the exercise of a calling of common right (a deed practiced by Nashville since the late 1800s). If journalists write about government to serve the public, let no barrier be cast in their path.

The U.S. constitution guarantees us Tennesseans a republican form of government here in our state and in Washington in article 4, section 4. The federal government “shall guarantee to every state in this union a republican form of government,” whose integrity is deemed threatened by invasion and “domestic violence.” Now, a fee for the review of public records isn’t exactly the same as, say, an invasion by a Muslim infantry column. But “republican” conveys the idea of a democratic and federal representative government, divided and limited by structure, lococentric in its origins, recognizing diverse and competing centers of power and the states themselves, each suited for maintaining liberty and prosperity for people within its borders.

Americans are seeing today the extent to which cartel economics, crony capitalism and centralization can go, and they are frustrated, even angry at the bleak national outlook. The Internet is redefining the media, decentralizing information gathering, democratizing the concept of the watchdog press.

Tennessee should champion openness, accessibility and the democratic impulse suggested in the great Web free-for-all. State government should stand apart from national political decline and self-isolation of the Washington government. From the loft of its financial grandeur, it should shrink from petty fee skimming and let the people have all the access they want.

Details of this week’s hearings are at this state government link.

— David Tulis hosts a talk show 9 to 11 a.m. weekdays at AM 1240 Hot News Talk Radio covering local economy and free markets in Chattanooga and beyond. Support local media by buying him a coffee at the tip jar nearby and advertising your business or group on AM 1240.

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