BentonCountyIssues.net
Notes on Public Records
Tennessee's Public Records Act, originally passed by the legislature in 1957, mandates that governmental entities grant full access to public records to every citizen of Tennessee.
The legislative policy behind the Act is enunciated in the enforcement provision that directs courts to construe the Act broadly "so as to give the fullest possible access to public records." Tennessee Code Annotated ("T.C.A.") § 10-7-505(d) (1999).
The original 1957 Act provided that "[a]ll state, county and municipal records" shall be open for inspection "unless otherwise provided by law or regulations made pursuant thereto." (Emphasis added.)
In 1984, the legislature amended the underlined portion to read: "unless otherwise provided by state statutes." The Tennessee Supreme Court has construed this amendment as reserving to the legislature alone the power to make exceptions to the accessibility of public records. Memphis Publishing Co. v. Holt, 710 S.W.2d 513, 517 (Tenn. 1986).
In 1991, the specific language was further amended to read: "unless otherwise provided by state law." The change from "state statute" to "state law" arguably broadens the means of limiting access beyond the holding in Holt to include exemptions under common law privileges.
The Public Records Act continues to go through many revisions. In addition to separate statutes throughout the Tennessee Code that create new exemptions to the Act, the Act itself was subjected to at least eleven different pieces of legislation between 1996 and 1999 that modified the Act.
The Tennessee open records law (the "Act") provides for a Tennessee citizen's personal inspection of all state, county and municipal records, and of all records maintained by the Tennessee Performing Arts Center management corporation at all times during business hours unless the records are statutorily declared to be confidential. A public record is defined as follows:
"Public record(s)" or "state record(s)" means all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings or other material regardless of physical form or characteristics made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency.
T.C.A. § 10-7-301(6), See also T.C.A. § 10-7-403 (defining "Public records within the county"). The determination of whether a document has been received "in connection with the transaction of official business" requires an examination of the totality of the circumstances. Griffin v. City of Knoxville, 821 S.W.2d 921, 924 (Tenn. 1991) (suicide notes taken into police custody are public records). Tennessee courts have had occasion to determine that certain records claimed to be exempt were in fact intended to be open: applications of those seeking the position of school superintendent, Board of Education of Memphis City Schools v. Memphis Publishing Co., 585 S.W.2d 629 (Tenn. Ct. App. 1979); payroll records of a public hospital, Cleveland Newspapers, Inc. v. Bradley County Memorial Hospital Board of Directors, 621 S.W.2d 763 (Tenn. Ct. App. 1981); and closed investigative files of a police department, Memphis Publishing Co. v. Holt, 710 S.W.2d 513 (Tenn. 1986).
The legislature has enacted numerous other statutes providing that certain records be deemed confidential or closed. Seventeen such categories of exceptions to the mandate of openness are contained in the Act itself under the rubric of "confidential records." T.C.A. § 10-7-504. A 1987 survey by a special committee of the Tennessee General Assembly found that 80 other statutes either limiting or barring public access to various public records have accrued over the past 30 years since the enactment of the Public Records Act. Since that time, the General Assembly has enacted additional exemptions.
Who can request records?
Any citizen of the state of Tennessee can request access to any records that are deemed to be records of public bodies. In 1998, the Supreme Court overturned earlier case law and held that a convicted felon is still a citizen for purposes of being able to seek access to public records. Cole v. Campbell, 968 S.W.2d 274 (Tenn. 1998) (overturning Roberson v. Rose, 17 TAM 3-28 (Tenn. Ct. App. Dec. 31, 1991 and Ray v. Stanton, C.A. No. 88-285-II (Tenn. Ct. App. Feb. 24, 1989); Corporations and other entities may be citizens of Tennessee for purposes of the Act. See Curve Elementary School Parent & Teachers Organization v. Lauderdale County School Board, 608 S.W.2d 855, 859-60 (Tenn. Ct. App. 1980) (granting standing to an unincorporated association of state residents to sue under Tennessee open meetings law, which requires state citizenship to bring suit); Metropolitan Air Research Testing Authority, Inc. v. The Metropolitan Government of Nashville and Davidson County, 17 TAM 31-21 (Tenn. Ct. App. July 8, 1992) (standing granted to a Tennessee corporation to sue under the open meetings law). Cf. Huntsville Util. Dist. v. Gen. Trust Co., 839 S.W.2d 397 (Tenn. Ct. App. 1992)(holding that the T.C.A. §10-7-504 term "members of the public" does not include the courts and public officials in the performance of official duties and therefore such officials have access to confidential records that are not available to "members of the public").
Must a purpose be stated as to why you are obtaining these records?
Neither the statute nor case law imposes restrictions as to the requester's purpose for requesting access or the use he makes of the information obtained under the open records law. See The Capital Case Resource Center of Tennessee, Inc. v. Woodall, 17 TAM 8-8, p.14 (Tenn. Ct. App. Jan,. 29, 1992) ("There is no statute which provides that exemption from disclosure is or may be premised on the purpose for which the citizen intends to use the requested documents").
What about use of records?
No specified limitation of use of public records. However, under T.C.A. §2-10-111 (the "Notice Requirement") the Registry of Election Finance or any county election commission must provide notice within three business days from the date of inspection to a candidate or single candidate political action committee whose files, statements, or records have been inspected or copied by a member of the public. The statute specifies certain information the notice must include: the name, address, business telephone number, home telephone number, and the driver's license or other appropriate identification of the person making such an inspection; for whom the inspection was made. If the requestor refuses to provide this information, the denial of request is not in violation of the Open Records Act. Op. Att'y Gen. No. 98-040 (February 9, 1998).
Whose records are and are not available?
The Act grants full access to the public of all governmental records "unless otherwise provided by state law." T.C.A. § 10-7-503(a) (1999). Thus, no Tennessee agencies are entirely exempted from the mandate of the Act.
Copies of any act, record, or paper in the office of the secretary of state are available to any person, "except papers relating immediately to the executive department, and, in the governor's judgment, requiring secrecy." T.C.A. § 8-3-104(10). All law enforcement personnel records are open. Special rules apply when inspections are made of the records. T.C.A. § 10-7-503(c)(1). Applications of applicants for city school superintendent are subject to the Act. Board of Education of Memphis City Schools v. Memphis Publishing Co., 585 S.W.2d 629 (Tenn. Ct. App. 1979) (holding that applications of those seeking the position of superintendent of city schools in the possession of a search committee created by the board of education were public records).
The joint legislative services committee has sole authority to determine whether any member of the public may be permitted access to the legislative computer system in which confidential information is stored or processed. T.C.A. § 3-10-108(a). Direct access to such a computer may not be permitted unless protection of any confidential information is ensured. Id. at § 3-10-108(b). No information available in printed form may be obtained from the legislative computer system pursuant to the Open Records Act. Id. at § 3-10-108(c).
Judicial records that are exempt from the Act are: complaints of judicial disability to the Court of the Judiciary, T.C.A. § 17-5-303; proceedings involving allegations of misconduct by or the disability of an attorney, Sup. Ct. R. 9 § 25; proceedings of the court of the judiciary, Jud. Ct. R. 8; and predisposition reports of investigations and evaluations of juveniles, Juv. Proc. R. 33(e). Arguably, the separation of powers doctrine might prohibit additional judicial records from being disclosed by the legislature's enactment of the Public Records Act. See Art. II § 1, 2, Tennessee Constitution; Op. Att'y Gen. No. U92-131, 18 TAM 3-34 (Dec. 28, 1992). In Ballard v. Herzke, 924 S.W. 2d 652 (Tenn. 1996), the Supreme Court held that the Tennessee Rules of Civil Procedure are state law which can except documents from the Public Records Act. Any conflict between provisions of the Rules of Civil Procedure and provisions of the Tennessee Code which cannot be harmoniously construed shall be resolved in favor of the Rules of Civil Procedure.
The Supreme Court ruled that the documents filed with the clerk of a court are public records but that the Act does not apply to documents that were sealed subject to a protective order. See also Memphis Publishing Co. v. City of Memphis, 19 TAM 9-2 (Tenn. Feb. 22, 1994)(deposition transcripts taken during course of bankruptcy proceedings in which city was a creditor were public records and city could not claim that deposition constituted attorney work product).
Tennessee courts have construed the Act to cover the records of nongovernmental bodies in receipt of public funds and of advisory boards of quasi-governmental bodies. Tenant subleases of city-owned property are open records. Creative Restaurants, Inc. v. Memphis, 795 S.W.2d 672 (Tenn. Ct. App. 1990) (tenant subleases of city-owned property in the possession of private, for-profit corporations that served as the city's leasing agent are public records under the Act). But see Webber v. Bolling, C.A. No. 177 (Tenn. Ct. App. December 13, 1989) (working papers of certified public accountants retained by Anderson County to conduct an audit of a department of the county government were not subject to disclosure under the Act). The payroll records of a public hospital have been held to be open under the Act. Cleveland Newspapers, Inc. v. Bradley County Memorial Hospital Board of Directors, 621 S.W.2d 763 (Tenn. Ct. App. 1981), cert. denied, (Tenn. 1981) (holding that only the legislature can designate records confidential and that a hospital created by the state legislature and financed with public funds is an arm of the state carrying on a governmental function). However, employee personnel records of a hospital operated by a not-for-profit corporation under a 50-year lease agreement with Shelby County are not subject to the Act. Memphis Pub. Co. v. Health Care Corp., 799 S.W.2d 225 (Tenn. Ct. App. 1990) (reasoning that hospital that was not created by the general assembly and never claimed governmental immunity from tort actions was a private rather than governmental entity).
What records does this Act cover?
All "state, county and municipal records" are public unless otherwise exempted. Broad categories of records legislatively mandated to be excluded from the Public Records Act include medical records of patients in state institutions, investigative files of the Tennessee Bureau of Investigation, records of students in public educational institutions, federal military and state militia records, state attorney general records, and investigative records of the internal affairs division of the department of corrections. T.C.A. § 10-7-504 (1999). Additionally, T.C.A. § 10-7-403 defines and enumerates county records that are public.
Records covered by the Act include all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, sound recordings, or other materials regardless of physical form made or received pursuant to law or ordinance or in connection with the transaction of official business by a governmental agency. T.C.A. § 10-7-301 (6). A records custodian will be required to disclose certain information maintained in a computer database even though it does not maintain the information in the exact format in which the request has been made. The Tennessean v. Electric Power Board of Nashville, 979 S.W.2d 297 (Tenn. 1998); See Real Estate Search System, Inc. v. Baltimore, 8 TAM 5-13 (Tenn. Ct. App. December 27, 1982) ("raw data" in the form of computer printouts are available under the Act).
Can copies be made?
The right to inspect public records includes the right to make copies. T.C.A. § 10-7-506(a). But see Alcorn v. State, 20 TAM 52-29 (Tenn. Ct. App. Nov. 29, 1995) (stating that §10-7-503 does not require police to supply requester with a copy of a file as the right to inspect does not imply an obligation to supply copies of records to individuals who are unable to appear in person at the place where records are kept). Alcorn has probably been overturned by The Tennessean v. Electric Power Board of Nashville.
Do I have to pay if I only want to look at the records?
There is no charge for merely reviewing public records. T.C.A. §10-7-123(a)(3). The custodian of public records has the right to adopt and enforce reasonable rules governing the making of copies. T.C.A. § 10-7-506(a). See Op. Att'y Gen. No. U95-88, 20 TAM 48-39 (Oct. 19, 1995) (board of directors of emergency committee has authority to adopt and enforce rules governing copy making of its public records, including fees assessed and the time allowed to make them, as long as the requirements are reasonable).
What if the information I am requesting is not available in the format that I need? What about computer databases?
The Act has no provision to allow a requester to obtain a customized search of computer databases to accommodate particular needs.
The Supreme Court held that if there is information that is stored on computer but not on the format desired by the requester, the agency is required to provide the information in the format requested. The Tennessean v. Electric Power Board of Nashville, 979 S.W. 2d 297 (Tenn. 1998) (electric power board was required to disclose its customer names, addresses, and telephone numbers as a public record, even though it did not have a list of only that information.). This 1998 decision probably overturns Seaton v. Johnson, 20 TAM 8-20 (Jan. 27, 1995, Tenn. Ct. App.) (stating that the Act does not require that state conduct a computer search for a particular type of record).
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