Does a Tennessee county have to charge the same archives and records management fee for every type of filed record?

Subject

Opinion No. 11-57, County Archives and Record Management Fee, July 12, 2011

Plain-English summary

Representative Matthew Hill asked a focused statutory-construction question. Tenn. Code Ann. § 10-7-408(b) lets a Tennessee county legislative body charge an "archives and record management fee not to exceed five dollars ($5.00) per each record filed" by various county offices (county clerk, sheriff, trustee, assessor, county executive, county commissioners, and so on, but not the county register). A parallel provision in subsection (b)(3) authorizes a similar fee on records filed with clerks of court to initiate legal proceedings. The question was whether the county must apply the same fee uniformly to every filing, or whether it can set different fees for different kinds of records.

The AG read the statute as written. The cardinal rule of statutory construction is to follow the plain meaning when the text is clear. The plain meaning of "an archives and record management fee not to exceed five dollars ($5.00) per each record filed" is: there is a cap of $5.00 per document. Nothing else. The statute does not say "uniform" and does not require every record to carry the same fee. So a county can charge $2 on one type of filing and $5 on another, as long as no individual fee crosses the $5 cap. The county legislative body has discretion within that ceiling.

This is a small, technical opinion, but it matters for county-government practice. Counties that wanted to set a lower fee for routine filings and a higher (but still capped) fee for more storage-intensive filings now had AG support for that practice.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The fee cap in Tenn. Code Ann. § 10-7-408 has been the subject of legislative attention over the years and could have been amended since 2011. Before relying on the $5 figure, look at the current statute.

Background and statutory framework

The fee authority. Tenn. Code Ann. § 10-7-408(b)(2) authorizes a county that has created a county records commission to "[e]stablish and collect, through all entities creating public records, as defined in § 10-7-403(1) and (3), except for the office of the county register, an archives and record management fee not to exceed five dollars ($5.00) per each record filed by the entities creating the public records." Subsection (b)(3) gives a parallel authority for records filed with clerks of court for the purpose of initiating a legal proceeding under § 10-7-403(2).

What counts as a public record under § 10-7-403. Subsection (1) covers documents, papers, records, books, and books of account in all county offices, including county clerk, county register, county trustee, sheriff, county assessor, county executive, and county commissioners. Subsection (2) covers records filed with clerks of court for the purpose of initiating legal proceedings. Subsection (3) covers minutes and records of the county legislative body.

The statutory construction rule. Jackson v. General Motors Corp., 60 S.W.3d 800, 804 (Tenn. 2001), confirms the cardinal rule: follow the plain meaning when the text is clear and unambiguous. There is no need to look outside the statute for indications of uniformity that the text itself does not contain.

Common questions

Can my county set a $1 fee for one type of filing and a $5 fee for another?

Yes, under this opinion. The only constraint is that no single fee can exceed $5.00 per document. Inside that ceiling, the county legislative body has discretion to set differentiated fees.

Does this fee apply to filings with the county register?

No. The statute explicitly excludes the office of the county register from § 10-7-408(b)(2). The register has its own separate fee schedule.

Can the county charge the fee on records filed with the clerk of court?

Yes, under § 10-7-408(b)(3), provided the records are filed "for the purpose of initiating a legal proceeding" and the records fall under § 10-7-403(2). The same $5 cap applies.

Does the county have to create a records commission first?

The statute conditions the fee authority on the county having "created a county records commission." Counties that have not done so do not have authority to impose the fee under this subsection.

What if the county wants to charge more than $5 for a particular record?

It cannot under § 10-7-408(b). The cap is statutory. A higher fee would require an amendment from the General Assembly or authority from a separate statute.

Citations

• Tenn. Code Ann. §§ 10-7-403(1), -403(2), -403(3)
• Tenn. Code Ann. §§ 10-7-408(b), -408(b)(2), -408(b)(3)
• Jackson v. General Motors Corp., 60 S.W.3d 800 (Tenn. 2001)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-057.pdf

Original opinion text

July 12, 2011
Opinion No. 11-57
County Archives and Record Management Fee

QUESTION

Whether Tenn. Code Ann. § 10-7-408(b) requires a county legislative body to uniformly impose the same archives and record management fee for public records.

OPINION

No, the statute only requires that the fee not exceed five dollars ($5.00).

ANALYSIS

Tenn. Code Ann. § 10-7-408(b)(2) provides that in any county that has created a county records commission, the county legislative body is authorized to "[e]stablish and collect, through all entities creating public records, as defined in § 10-7-403(1) and (3), except for the office of the county register, an archives and record management fee not to exceed five dollars ($5.00) per each record filed by the entities creating the public records." Subsections (1) and (3) of Tenn. Code Ann. § 10-7-403 define "public records" as "[a]ll documents, papers, records, books, and books of account in all county offices, including, but not limited to, the county clerk, the county register, the county trustee, the sheriff, the county assessor, the county executive and county commissioners, if any" and the "minutes and records of the county legislative body." Tenn. Code Ann. § 10-7-408(b)(3) authorizes the county legislative body to establish a similar archives and record management fee for public records defined in Tenn. Code Ann. § 10-7-403(2), filed with the clerks of court for the purpose of initiating a legal proceeding.

You have asked whether Tenn. Code Ann. § 10-7-408(b) requires a county legislative body to uniformly impose the same fee for all records, or may it establish a varying fee schedule depending on the record filed. "The cardinal rule of statutory construction is to follow the plain meaning of the statute where the language is clear and unambiguous on its face." Jackson v. General Motors Corp., 60 S.W.3d 800, 804 (Tenn. 2001). Tenn. Code Ann. § 10-7-408(b)(2) and (3) on their face authorize a county legislative body to establish an archive and record management fee for each document filed with those entities creating public records that are identified in Tenn. Code Ann. § 10-7-403, with the exception of the county register, with the fee not to exceed five dollars ($5.00) per document. The language of the statute is clear and unambiguous. It does not mandate the amount of the fee, but instead leaves it to the discretion of the county legislative body to establish the fee, provided that it does not exceed five dollars ($5.00) per document filed. Accordingly, it is our opinion that, as long as the fees do not exceed five dollars ($5.00), a county legislative body is not required to impose a uniform archive and record management fee for all documents filed pursuant to Tenn. Code Ann. § 10-7-408(b)(2) and (3).

ROBERT E. COOPER, JR.
Attorney General and Reporter

GINA J. BARHAM
Deputy Attorney General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Matthew Hill
State Representative
25 Legislative Plaza
Nashville, TN 37243-0131