Report: Memphis Open Records Policies Need Work

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Carpenter - PLOUGH FOUNDATION
  • Plough Foundation
  • Carpenter
Deficiencies in the city’s public records process stem from inefficient processes, a lack of understanding of open records laws by citizens and city employees, and “a growing distrust between the public records staff at various levels of city government and the local media,” according to a new report.

In 2009, Memphis Mayor A C Wharton issued an executive order to make city government more transparent, "based on the understanding that the city of Memphis belongs to the public and to achieve the open government we desire and the public deserves." 

In March, Wharton asked Mike Carpenter, executive director of the Plough Foundation, to conduct an independent study of the city’s public records system. In an April 30 letter to the mayor, Carpenter said that “a healthy tension between government and the media is expected and beneficial. However, when that ‘push and pull’ becomes an authentic tug of war, citizens and the processes suffer.”

Carpenter’s report lays out several recommendations based on interviews with city staff, local news reporters and editors (including some from the Memphis Flyer), Shelby County staff, and some non-profit organizations focused on transparency in government.

In a year, the report found an average of 645 records requests were filed for city documents. The most was for documents from the Memphis Police Department (207), followed by Law Division (136), Memphis Animal Shelter (104), Public Works (43), and the Memphis Fire Department (41).

On average, these requests were filled within 8.7 business days. The mayor’s media division scored the worst, with an average of 25.5 days to fill a records request. The Citizen’s Hotline scored the best at 4.1 days to fill a request.

Here are some highlights of Carpenter’s recommendations to the mayor:

1. Move public records responsibility from the law division to the executive division.
“The reassigning of the responsibility would underscore the imperative to have the process driven by the mayor and chief administrative officer. It would address the fatigue and frustration expressed by staff of the Law Division, which was evident from my interviews, and allow the city’s attorneys to focus on contracts, lawsuits and policies and avoid potential conflicts arising out of public records litigation.”

2. Appoint a Public Records Ombudsman to oversee the process and resolve disputes.
“To adequately insure the seriousness of purpose in making government open and transparent, a single individual needs to bear day-to-day responsibility for the success of the process and the compliance of the individuals charged with carrying out the process.”

3. Appoint a Public Records Oversight Committee
“The specific role of the Oversight Committee would be to discuss the efficacy of the existing processes, raise concerns and discuss potential solutions and seek to resolve conflicts that might otherwise lead to litigation.
“The committee would be comprised of the Chief Information Officer, City Attorney, a Records Custodian from a City Division, a member of the City Council, a representative of print media, a representative of broadcast media and two private citizens.”

4. Reassign all records custodians
“All current custodians should be relieved of their public records duties and those duties reassigned to new staff within each department or division. The value to this recommendation is a fresh start with individuals who have a renewed sense of purpose.“

5. Don’t charge for labor costs 
“…maintaining an open and transparent government comes with a cost and labor associated is just the price of doing business. Equally compelling is that taxpayers have essentially already paid for the labor through their property and sales taxes that fund the salaries of city government employees.
“The fact that some use the services of public records staff more frequently than others is basically no different than one taxpayer who uses Poplar Avenue daily and another who never uses that route. Both must pay for the maintenance of this important City thoroughfare.”

6. Upgrade public records technology
This includes upgrading the city’s email system, and launching a data portal, separate for the city’s website.

7. Institue new policies at the Memphis Police Department
Make all police indecent reports available within 48 hours. Make public all Internal Affairs investigations. Involve the Tennessee Bureau of Investigation [TBI] only as a last resort (TBI is exempt from public disclosure of records). Figure out how to release body camera footage, once it’s available.

Make recommendations in the report apply to MPD.

“…in regard to public records, MPD should go beyond what the law requires and set a standard of transparency for the rest of city government.

“In this day of Ferguson, Baltimore, Tulsa and many, many other incidents of alleged police misconduct, MPD must hold itself to the highest standards of transparency to demonstrate the honesty and integrity with which the vast majority of officers operate.

“Therefore, it is critical that MPD be subjected to the same recommendations outlined throughout this report as permitted by law.”

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On a related side note, a request for the arrest record for Larry Ron Bowen (the Arkansas truck driver arrested for swapping a tractor trailer load of lunch meat for crack) has been open for a week now.

The city website says requests are typically filled within five business days but could take longer depending on request volume.

Until then, we wait. 


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