Sunshine Law Update

2008 Public Records Act

The legislature recently made numerous changes to the Tennessee Public Records Act, Tenn. Code Ann.  § 10-7-503 et seq., some substantive and others merely procedural. Core substantive provisions of the act remain intact. Additionally, several new provisions have been enacted, many of which are procedural, but some significantly narrow what information is publicly available under the act.

Overall the recent amendments to the act are a further attempt by the legislature to ensure transparency in government. In enacting these changes, the general assembly has evoked policies and principles presented by the Special Joint Committee to Study Open Government Laws that "providing information to the public is an essential function of a representative government and an integral part of the routine duties and responsibilities of public officers and employees." Tenn. Code Ann.  § 8-4-604 (a)(1)(B)(i).

1. Key operable provision is now codified at Tenn. Code Ann.  § 10-7-503(a)(2)(A).
The core operable provision of the act, previously codified simply as Tenn. Code Ann.  § 10-7-503(a), is now codified at  § 10-7-503(a)(2)(A), effective July 1, 2008. However, the fundamental thrust and scope of this foundational text remains unchanged. Although the amendments streamline somewhat the text by deleting the prior reference to the Tennessee Performing Arts Center Management Corporation from this provision, Tenn. Code Ann.  § 10-7-503(a)(2)(A) includes unessential language in the current text relating to "business hours" of public hospitals.1 Otherwise, the current text remains practically as it was since 19912 and provides as follows:

Tenn. Code Ann.  § 10-7-503(a)(2)(A), eff. July 1, 2008.

All state, county and municipal records shall at all times, during business hours, which for public hospitals shall be during the business hours of their administrative offices, be open for personal inspection by any citizen of Tennessee, and those in charge of such records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law. [Emphasis added.]


2. A definition of "public record" is now provided within the act itself, Tenn. Code Ann.  § 10-7-503(a)(1), although the provisions of  § 10-7-301(6) remain intact.
The Public Records Act now, for the first time, provides within the act, itself, a definition of "public record". The amendment effective July 1, 2008 defines a "public record" as follows:

Tenn. Code Ann.  § 10-7-503

(a)(1) As used in this part and Title 8, Chapter 4, Part 6, "public record or records" or "state record or records" 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. [Emphasis added.]


Interestingly, the legislature did not amend or repeal the statutory definition of "public record" in Tenn. Code Ann.  § 10-7-301(6). It provides as follows:

Tenn. Code Ann.  § 10-7-301
...
(6). "Public record or records" or "state record or records" 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[.]


The impact of the recent amendment to Tenn. Code Ann.  § 10-7-503(a)(1) providing a definition of "public record" for purposes of the act is likely to be miniscule. Early on, the definition of "public record" in Tenn. Code Ann.  § 10-7-301(6) was relied on by appellate courts in construing the act,3 and as well as the Supreme Court.4 Aside from the reference to Title 8, Chapter 4, Part 6 relating to the office of open records counsel, the definition of "public record" in Tenn. Code Ann.  § 10-7-503(a)(1) is exactly the same as the definition of "public record" in Tenn. Code Ann.  § 10-7-301(6).

Moreover, the Supreme Court in Memphis Pub'g Co. v. Cherokee Childrens & Family Services Inc., 87 S.W.3d 67, 77-80 (Tenn. 2002) held5 that the term "public records", as defined by Tenn. Code Ann.  § 10-7-301(6), also applies to the records of non-governmental entities that are the "functional equivalent" of a governmental agency.6 Cherokee Family Services relied on the definition of "public records" under Tenn. Code Ann.  § 10-7-301(6), although the Supreme Court stated: "even this definition does not identify with precision how courts should determine whether any given record has been 'made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency.'" Id. at 75.

It could be argued with some seriousness that by expressly defining what constitutes a "public record" in Tenn. Code Ann.  § 10-7-503(a)(1), the legislature statutorily overruled or limited the application of Cherokee Childrens & Family Services, which relied on the definition of "public record" in Tenn. Code Ann.  § 10-7-301(6). Although this assertion may not be frivolous, it is doubtful such a strict reading or narrow construction of Tenn. Code Ann..  § 10-7-503(a)(1) would prevail. Moreover, the legislature implicitly embraced the holding in Cherokee Childrens & Family Services by providing in the newly enacted provisions of Tenn. Code Ann.  § 10-7-503(a)(6) that "[a] governmental entity is prohibited from avoiding its disclosure obligations by contractually delegating its responsibility to a private entity." (Emphasis added.) This new language may be construed as embracing the "functional equivalent" test enunciated in Cherokee Childrens & Family Services.

Notwithstanding that the legislature has now provided a definition of "public record" within Tenn. Code Ann.  § 10-7-503(a)(1), the ambiguity in the statutory definition of "public record" the Supreme Court pointed out in Cherokee Childrens & Family Services was not addressed by this amendment, and may require further judicial interpretation.7

3. "Any Citizen of Tennessee" Requirement Remains Intact.
Why would the legislature continue to mandate disclosure of public records only when requested by "any citizen of Tennessee"?8 Some have argued that similar restrictions in open record laws of other states are "senseless".9 The "citizen" provision is now found at Tenn. Code Ann.  § 10-7-503(a)(2)(A), formerly Tenn. Code Ann.  § 10-7-503(a),10 although there were considerations of extracting it from the act. Although this technicality is easily and often circumvented simply by obtaining the services of a Tennessee attorney or other citizen to seek the records, this provision impliedly has even further substance, and there are valid, substantial and reasonable grounds for the "citizen of Tennessee" requirement. It underscores, for example, that a non-citizen does not have standing11 to bring a petition for access under Tenn. Code Ann.  § 10-7-505, because a request for public records by a non-citizen is not made "as provided in  § 10-7-503." Thus, disclosure of public records to non-citizens by the custodian of records is purely discretionary.

Moreover, the "any citizen of Tennessee" language underscores that a choice of law provision commonly found in contracts providing that a public entity which is a party to the contract shall be governed by the laws of another state is void and unenforceable insofar as such contract fails to provide an exception that only the public records laws of this state shall apply to any Tennessee governmental entity. The contracts of all individuals, entities or corporations with governmental entities in this state are subject to the public records law of this state " and not the public records laws of citizens of any other state. Regardless of whether that person, business or corporation is a non-citizen doing business with a public entity in this state, only the Tennessee Public Records Act controls who gets access to records, when, and what records are "public". Non-citizens and business entities from other states contracting with public entities in Tennessee often do not want to abide by the Tennessee Public Records Act because it has very few exceptions applicable to counties, municipalities and other local governments.12 Further, no court other than a Tennessee tribunal or federal court applying Tennessee law has jurisdiction or capacity to determine any issue relating to the construction, scope or application of the Tennessee Public Records Act, regardless of what a conflict of law provision in a contract may provide. Any public contract provision that purports to preempt the provisions of the Tennessee Public Records Act is void ab initio.

"Control over access to state or local government records is a central attribute of state sovereignty." Swift v. Campbell, 159 S.W.3d at 577. The state's objectives and grounds for limiting access to public records under the act to citizens of Tennessee are valid, substantial and reasonable, and the "citizen" restriction bears a substantial relationship to those objectives. Based on the limited case law, there appears to be little support for the position that the "citizen" requirement is an impermissible state law restriction.13

4. "Prompt" access to records required, but seven business days window may be permitted or constitutes a "denial".
The amendments to the act effective July 1, 2008 expressly provide that "[t]he custodian of a public record ... shall promptly make available for inspection any public record not specifically exempt from disclosure." Tenn. Code Ann.  § 10-7-503(a)(2)(B). (Emphasis added.) The requirement for "prompt" disclosure was not previously an express statutory requirement, but providing public records promptly or within a reasonable time was always implicitly required by the act. Additionally, the amendments to the act effective July 1, 2008 also provide the following:

Tenn. Code Ann.  § 10-7-503(a)(2)(B)
The custodian of a public record ... shall promptly make available for inspection any public record not specifically exempt from disclosure. In the event it is not practicable for the record to be promptly available for inspection, the custodian shall within seven (7) business days:
1. Make such information available to the requestor;
2. Deny the request in writing or by completing a records request response form developed by the office of records counsel. The response shall include the basis for the denial; or
3. Furnish the requestor a completed records request response form developed by the office of open records counsel stating the time reasonably necessary to produce such record or information. [Emphasis added.]

Aside from establishing firm procedural rules, this provision requires that any public record shall be made available for inspection that is "not specifically exempt from disclosure." This language appears to hark back to the period prior to 1991 when only "statutes" could provide the basis for non-disclosure of a record and raises questions as to whether only the exceptions set forth in Tenn. Code Ann.  § 10-7-504 or expressly set forth elsewhere in the act or some other statute can provide the basis for non-disclosure of a record. However, such a narrow interpretation is unlikely to prevail, particularly because the legislature kept the phrase "unless otherwise provided by state law" intact in Tenn. Code Ann.  § 10-7-503(a)(2)(A). See Swift v. Campbell, 159 S.W.3d at 571-72.

5. A request should be reasonably precise, as the custodian has no obligation to sort through files to compile information.
The recent amendments to the act make it clear that Tenn. Code Ann.  § 10-7-503 "shall not be construed as requiring a governmental entity or public official to sort through files to compile information ...." Moreover, "[t]his section shall not be construed as requiring a governmental entity or public official to create a record that does not exist ...." Tenn. Code Ann.  § 10-7-503(a)(4) and (5). (Emphasis added.) Therefore, it is incumbent on the requester to formulate a reasonably precise public records request which "shall be sufficiently detailed to enable the records custodian to identify the specific records to be located or copied." Tenn. Code Ann.  § 10-7-503(a)(7)(B). (Emphasis added.)

6. Consistent with the Schedule of Reasonable Charges, a records custodian may charge the requestor for labor in excess of first (1) hour.
Tenn. Code Ann.  § 10-7-503(a)(7)(C)(1) provides that "[a] records custodian may require a requestor to pay the custodian's reasonable costs incurred in producing the requested material and to assess such reasonable costs in the manner established by the office of open records counsel." (Emphasis added.) Accordingly, the Office of Open Records Counsel (OORC) adopted a Schedule of Reasonable Charges14 on Oct. 1, 2008.15 Tenn. Code Ann.  § 8-4-604(a)(1)(B)(ii) provides that the OORC Schedule of Reasonable Charges shall reflect that "excessive fees ... shall not be used to hinder access to ... public information."

Tenn. Code Ann.  § 10-7-506(a) also provides that "the lawful custodian of such records shall have the right to adopt and enforce reasonable rules governing the making of such extracts, copies, photographs or photostats." This provision has not been amended; nevertheless, it is consistent with recent changes to Tenn. Code Ann.  § 10-7-503(a)(7)(C)(1) and the OORC Schedule of Reasonable Charges. The Schedule is not mandatory, but may be used "as a guideline to charge a citizen requesting copies of public records." Tenn. Code Ann.  § 8-4-604(a)(1). (Emphasis added.) However, a records custodian who "adheres to such policies and guidelines" is entitled to the "safe harbor" provisions of the statute, Tenn. Code Ann.  § 8-4-604(a)(3), which may help to shield against an award of attorney's fees and litigation costs under Tenn. Code Ann.  § 10-7-505(g), which was amended effective July 1, 2008 to provide: "In determining whether the action was willful the court may consider any guidance provided to the records custodian by the office of open records counsel as created in Title 8, Chapter 4."

7. No written request required or charge permitted to "view" public records.
The act provides that any citizen may appear during business hours for personal "inspection" of a public record at the location where it is maintained, and the custodian thereof cannot require the citizen make the request to "view" public records in writing. Tenn. Code Ann.  § 10-7-503(a)(7)(A). This statute expressly states that "[a] records custodian may not ... assess a charge to view a public record unless otherwise required by law." (Emphasis added.) See, also, Tenn. Code Ann.  § 8-4-604(a)(1)(B)(iii).

a. Exception: Tenn. Code Ann.  § 10-7-503(c)-(d)

Nonetheless, any request to view, access or copy personnel records of "law enforcement" employees must be evidenced a writing satisfying Tenn. Code Ann.  § 10-7-503(c)(1)(A) through (D), as amended effective June 13, 2007.16 See Part 9, infra.

b. Written request may be required to copy public records

However, a records custodian may require that a request to copy or "for copies of public records to be in writing" or on a form approved by the OORC. Tenn. Code Ann.  § 10-7-503(a)(7)(A).

8. Redaction of non-public information from records.
It is unclear whether Tenn. Code Ann.  § 10-7-503(a)(7)(C)(1) will permit the records custodian to charge the requester for labor in excess of the first (1) hour involved in redacting from public records information deemed confidential or privileged by statute or other law.17 Heretofore, under Tenn. Code Ann.  § 10-7-506(a), which, as indicated, has not been amended, governmental entities could not charge for actual costs they incurred in redacting confidential or privileged information from public records. Tenn. Code Ann.  § 10-7-506(a), as interpreted, permitted the records custodian to adopt and enforce "reasonable rules" governing the making of copies, which meant the requestor was required to pay only "reasonable" charges, which did not include labor costs for redaction, as opposed to actual costs of production incurred by the records custodian.18

When Tenn. Code Ann.  § 10-7-503(c) was amended effective June 13, 2007 by Pub. Ch. 425, the following provision was added as subdivision (c)(2): "Information made confidential by this chapter shall be redacted whenever possible, but the costs associated with redacting records or information, including the cost of copies and staff time to provide redacted copies, shall be borne as provided by current law." (Emphasis added.) However, the 2007 amendment did not shed light on whether the cost for redaction of confidential information could be charged the requester under "current law." In the absence of a statute specifically permitting costs for redaction to be recovered, the presumption was that under Tenn. Code Ann.  § 10-7-506(a) the cost for redaction was an unfunded mandate to be borne by the public entity. Since labor costs above the "labor threshold" of one hour are now expressly permitted to be charged the requester, costs reasonably incurred in the redaction of confidential information may be a "reasonable cost" under Tenn. Code Ann.  § 10-7-503(a)(7)(C)(1) permitted to be passed on to the requester. But, to the extent a requester asks only to "view" public records which have confidential information that must be redacted, the public entity still incurs costs which are not reimbursed.

9. Large volume requests and frequent or multiple requests.
Pursuant to Tenn. Code Ann.  § 10-7-506(a), which states that the records custodian may "adopt and enforce reasonable rules" for the making of copies and extracts, a records custodian should be permitted to adopt a reasonable rule similar to Tenn. ADC 0690-3-1.07(1).19 Whether Tenn. Code Ann.  § 10-7-506(a) would authorize the records custodian to adopt and enforce a rule prohibiting citizens from bringing their personal copying equipment to the office where the records are located to make extracts or photostats may be open for interpretation, however. Such a rule appears to meet the "reasonableness" test under most circumstances because, as a practical matter, bringing personal copying equipment into the typical public office could interfere with the normal and efficient operation of the office.

Nevertheless, the recent amendments bring this into question since Tenn. Code Ann.  § 8-4-604(a)(1)(B)(v) provides that in developing "guidelines" the OORC shall consider the "principles" presented by the open government study committee "[t]hat when large-volume requests are involved ... the requestor [is permitted] to provide copying equipment or an electronic scanner." Moreover, the legislature provided "[t]hat when large-volume requests are involved, information shall be provided in the most efficient and cost-effective manner ...." Id.

The provision under Tenn. Code Ann.  § 8-4-604(a)(1)(B)(v), on its face, only applies to "large-volume requests", not to "frequent and multiple requests for public records" which are separately covered under Tenn. Code Ann.  § 8-4-604(a)(2). The latter provision provides that the guidelines and policies established by the OORC shall include "[a] separate policy related to reasonable charges which a records custodian may charge for frequent and multiple requests for public records." The import of this provision would appear to allow for additional costs or increased charges to more fully capture the actual costs incurred by the records custodian in responding to repeated requests.

10. "Format" and electronic access.
Heretofore, no statute or court decision has mandated that records be provided in electronic format when requested. The Tennessean v. Elec. Power Bd. of Nashville, 979 S.W.2d at 304-05 held only that information maintained in electronic format by public entities constitute "public records" under Tenn. Code Ann.  § 10-7-301(6), which is now either supplemented or supplanted by Tenn. Code Ann.  § 10-7-503(a)(1). Accord, Wells v. Wharton, 2005 WL 3309651 (Tenn. Ct. App. 2005), perm. app. den. (Aug. 21, 2006). Hence, under prior Tennessee law, the records custodian was required to disclose all public information stored electronically, but had discretion whether to provide the records to the requestor in paper or electronic format. For example, neither Tenn. Code Ann.  § 10-7-121 nor  § 10-7-123 requires that public records be provided electronically. Rather, Tenn. Code Ann.  § 10-7-123(a)(4) merely provides that "[o]nce a remote electronic access information system is in place ..." allowing access to records remotely, "access must be given to all members of the public who desire access".
Thus, the provision in Tenn. Code Ann.  § 8-4-604(a)(1)(B)(iv) requiring that the OORC develop guidelines and policies permitting the requestor the "option of receiving information in any format in which it is maintained by the agency, including electronic format consistent with Title 10, Chapter 7, Part 1" (emphasis added) must be read carefully, since no provision in Title 10, Chapter 7, Part 1 mandates that public records be provided in electronic format, unless a remote electronic access information system is in place with regard to such records. Tenn. Code Ann.  § 10-7-123(a)(4).

11. "Safe harbor" policy.
Since the schedule of reasonable charges established by the OORC pursuant to Tenn. Code Ann.  § 8-4-604(a) are merely guidelines as to reasonable charges and policies and "shall not be deemed to be rules" under the Uniform Administrative Procedures Act, the legislature provided an incentive for public entities to adhere to these guidelines by providing a "safe harbor policy" under Tenn. Code Ann.  § 8-4-604(a)(3). The legislature did not expressly specify what protection is afforded to public entities that adhere to these safe harbor provisions. Presumably, however, a public entity that adheres to the schedule of reasonable charges, guidelines and policies established by the OORC may be protected against an assessment of costs or attorney's fees under Tenn. Code Ann.  § 10-7-505(g) to a certain extent.

Moreover, Tenn. Code Ann.  § 8-4-601(b) provides that "[t]he office of open records counsel shall answer questions and issue informal advisory opinions as expeditiously as possible to any person including local government officials, members of the public and the media." (Emphasis added.) "The office of open records counsel is ... [also] authorized to informally mediate and assist with the resolution of issues concerning the open records laws ...." Tenn. Code Ann.  § 8-4-601(c). (Emphasis added.) Again, although not expressly provided, it is presumed that a governmental entity that abides by an informal advisory opinion issued by the OORC would not be subject to an assessment of any costs or attorney's fees under Tenn. Code Ann.  § 10-7-505(g).

12. Procedure to access "law enforcement" personnel records.
The legislature made amendments to Tenn. Code Ann.  § 10-7-503(c) effective June 13, 2007 concerning public record requests for law enforcement personnel records. The legislature also modified provisions under Tenn. Code Ann.  § 10-7-504(f), effective June 13, 2007, and added new subsection (g) effective June 13, 2007, pertaining to what information relating to law enforcement personnel is confidential under the act. The legislature subsequently made further amendments to Tenn. Code Ann.  § 10-7-504, effective May 1, 2008, making home addresses and other information relating to all public employees "confidential". These amendments are discussed in the next section under Part 13, infra. The innocuous effect of Tenn. Code Ann.  § 10-7-503(c)(2) was previously discussed in Part 8, supra.

Other changes made by the legislature effective June 13, 2007 relate to what information pertaining to law enforcement personnel is confidential under the long list of statutory exceptions under Tenn. Code Ann.  § 10-7-504. Effective June 13, 2007, Tenn. Code Ann.  § 10-7-504(f) was amended to make personnel information "any law enforcement officer commissioned pursuant to  § 49-7-118" i.e., campus police officers, confidential and subject to redaction to the same extent as other law enforcement personnel.

Also, the legislature deleted the provisions previously set forth in Tenn. Code Ann.  § 10-7-504(g)(1)20 and substituted the following provisions effective June 13, 2007 which are much more extensive:

Tenn. Code Ann..  § 10-7-504 [law enforcement personnel information]
...
(g)(1)(A)(i) All law enforcement personnel information in the possession of any entity or agency in its capacity as an employer, including officers commissioned pursuant to  § 49-7-118, shall be open for inspection as provided in  § 10-7-503(a), except that personal information shall be redacted where there is a reason not to disclose as determined by the chief law enforcement officer or his or her designee.
(ii) When a request to inspect includes such personal information and the request is for a professional, business, or official purpose, the chief law enforcement officer or custodian shall consider the specific circumstances to determine whether there is a reason not to disclose and shall release all information except that made confidential in  § 10-7-504(f) if there is not such a reason. In all other circumstances, the officer shall be notified prior to disclosure of the personal information and shall be given a reasonable opportunity to be heard and oppose the release of the information. Nothing in this subdivision (g)(1) shall be construed to limit the requestor's right to judicial review set out in  § 10-7-505.
(iii) The chief law enforcement officer shall reserve the right to segregate information which could be used to identify or to locate an officer designated as working undercover.
(B) In addition to the requirements of  § 10-7-503(c), the request for a professional, business, or official purpose shall include the person's business address, business telephone number and email address. Such request may be made on official or business letterhead and the person making the request shall provide the name and contact number or email address for a supervisor for verification purposes.
(C) If the chief law enforcement official, his or her designee, or the custodian of the information decides to withhold personal information, a specific reason shall be given in writing within two (2) business days to the requestor, and the file shall be released with the personal information redacted.
(D) For purposes of this subsection (g), personal information shall include the officer's residential address, home and personal cellular telephone number; place of employment; name, work address and telephone numbers of the officer's immediate family; name, location, and telephone number of any educational institution or daycare provider where the officer's spouse or child is enrolled. [Emphasis added.]


The new provisions of Tenn. Code Ann.  § 10-7-504(g)(1) set forth above may clarify an ambiguity pertaining to the notice required under Tenn. Code Ann.  § 10-7-503(c). It provides, in pertinent part:

Tenn. Code Ann.  § 10-7-503(c)(1)
... whenever the personnel records of a law enforcement officer are inspected as provided in subsection (a), the custodian shall make a record of such inspection and provide notice, within three (3) days from the date of the inspection, to the officer whose personnel records have been inspected:
(A) That such inspection has taken place;
(B) The name, address and telephone number of the person making such inspection;
(C) For whom the inspection was made; and
(D) The date of such inspection.
[Emphasis added.]


Law enforcement officers may have due process rights with regard to their personnel information that must be protected under the constitution. See, Kallstrom v. City of Columbus, 136 F.3d 1055, 1059 (6th Cir.1998). Therefore, it is reasonable to construe Tenn. Code Ann.  § 10-7-503(c)(1) as requiring three days advance notice be provided to law enforcement personnel when their personnel records are subject to a public records request. However, the three day notice requirement in Tenn. Code Ann.  § 10-7-503(c)(1), arguably, is ambiguous as to whether the three day notice must be provided prior to the release of the records. Nonetheless, the recently enacted provisions of Tenn. Code Ann.  § 10-7-504(g)(1)(A)(ii) clear this up, at least in situations when a request to inspect the personnel records of a law enforcement officer is not "for a professional, business, or official purpose". In such situations, i.e., "[i]n all other circumstances, the officer shall be notified prior to disclosure of the personnel information and shall be given a reasonable opportunity to be heard and oppose the release of the information." Id. (Emphasis added.) Construing Tenn. Code Ann.  § 10-7-503(c)(1) in para materia with Tenn. Code Ann.  § 10-7-504(g)(1)(A)(ii) the reasonable conclusion is that the law enforcement officer is entitled to a minimum three days prior notice before personnel records are released pursuant to any public records request, unless the request is for a "professional, business, or official purpose," which reasonably should be construed as limited to when the officer's files are inspected by another governmental entity for employment, business or professional purposes or in connection with an official investigation.

Additionally, the recently enacted provisions of Tenn. Code Ann.  § 10-7-504(g)(1)(A)(i) providing that "personal information shall be redacted where there is a reason not to disclose as determined by the chief law enforcement officer or his or her designee" (emphasis added) significantly broaden the discretion given to the chief law enforcement officer. Previously, Tenn. Code Ann.  § 10-7-504(g) only authorized a more limited exception by providing that "[p]ersonnel information of any police officer designated as working undercover ... which has the potential, if released, to threaten the safety of the officer or the officer's immediate family or household members may be redacted if the chief law enforcement officer determines that its release poses such a risk."21 Moreover, the recently enacted amendments to Tenn. Code Ann.  § 10-7-504(g)(1)(A)(i) requiring that "personal information shall be redacted where there is a reason not to disclose as determined by the chief law enforcement officer or his or her designee." does not appear to be limited to police officers "designated as working undercover" from the face of the statute.

13. Home Addresses and other information of Public Employees Confidential.
Under the prior provisions of Tenn. Code Ann.  §10-7-504(f)(1), only the "[u]npublished telephone numbers" of public employees in general was protected from disclosure pursuant to a public records request. However, as of May 1, 2008 the "home telephone and personal cell phone numbers" of all public employees are designated as confidential by Tenn. Code Ann.  § 10-7-504(f)(1)(A). Also effective May 1, 2008 the following language was added to the act and designated as new subsection Tenn. Code Ann.  § 10-7-504(f)(1)(D)(i): "Residential information, including the street address, city, state and zip code, for any state employee". Similarly, the following language was designated as new subsection Tenn. Code Ann.  § 10-7-504(f)(1)(D)(ii): "Residential street address for any county, municipal or other public employee". Additionally, a technical change deleting the reference to "(f)(1)(A)-(D) and substituting (f)(1)(A)-(E) was made reflecting the above changes.

Accordingly, Tenn. Code Ann.  § 10-7-504(f)(1), as amended effective May 1, 2008 reads as follows:

Tenn. Code Ann.  § 10-7-504 [address, phone and other confidential information of public employees]

(f)(1) The following records or information of any state, county, municipal or other public employee, or of any law enforcement officer commissioned pursuant to  § 49-7-118, in the possession of a governmental entity or any person in its capacity as an employer shall be treated as confidential and shall not be open for inspection by members of the public:
(A) Home telephone and personal cell phone numbers;
(B) Bank account information;
(C) Social security number;
(D) (i) Residential information, including the street address, city, state and zip code, for any state employee; and
(ii) Residential street address for any county, municipal or other public employee;
(E) Driver license information except where driving or operating a vehicle is part of the employee's job description or job duties or incidental to the performance of the employee's job; and
(F) The information listed in subdivisions (f)(1)(A)"(E) of immediate family members or household members.

 

Conclusion

Notwithstanding some provisions recently enacted by the general assembly significantly narrow what information is available under the Public Records Act, overall these changes are a reasonable effort to ensure transparency in government.

Notes

1. Pursuant to Tenn. Code Ann.  § 10-7-506(a) providing for the adoption of "reasonable rules", this is understood to be limited to the regular "business hours" of the administrative offices for the entity. See, e.g., Tenn. ADC 0690-3-1.07(1), providing: "All records of the Purchasing Division and the Board of Standards shall be available to the public during the regular State office hours." (Emphasis added.) Compare, Tenn. Code Ann.  § 10-7-507 "public records of convictions of traffic violations or any other state, county or municipal public offenses shall ... [be] available to any citizen ... during regular office hours ...." (Emphasis added.)

2. Heretofore, the most significant recent change the legislature made to this text was in 1991 when "the General Assembly ... amended Tenn. Code Ann.  § 10-7-503(a) by replacing the phrase "state statute" with "state law." Swift v. Campbell, 159 S.W.3d 565, 571 n.10 (Tenn. Ct. App. 2004) (app. den. Jan. 31, 2005), citing Act of May 6, 1991, ch. 369,  § 7, 1991 Tenn. Pub. Acts 598. The significance of this change is explained by the court of appeals in Swift at 571-72.

3. See, Board of Educ. of the Memphis City Schools v. Memphis Publ'g Co., 585 S.W.2d 629, 630 (Tenn. Ct. App. 1979), cert. den. (in holding that personnel files of applicants for the position of school superintendent in the hands of a search committee are "public records", the court construed Section 304 (now, Tenn. Code Ann.  § 10-7-503(a)(2)(A)) as applying to "records other than Chapters 1 and 2 'Public Records'" " thus, applying the definition of "public records" as currently found in Tenn. Code Ann.  § 10-7-301(6); see, also, Swift v. Campbell, 159 S.W.3d at 570, citing, Tenn. Code Ann.  § 10-7-301(6); Kimberly Kay Allen et al. v. John Day & Powers Mgt., LLC, 213 S.W.3d 244 (Tenn. Ct. App. 2006) perm. app. den. (Dec. 27, 2006) ("The Public Records Act's application has been limited to public records, which are statutorily defined as 'all documents ... made or received pursuant to law or ordinance in connection with the transaction of official business by any governmental agency'"). (Emphasis added.)

4. Memphis Publ'g Co. v. City of Memphis, 871 S.W.2d 681, 687 (Tenn. 1994), citing, Tenn. Code Ann.  § 10-7-301(6); Griffin v. City of Knoxville, 821 S.W.2d 921, 923 (Tenn. 1991) (relying on Tenn. Code Ann.  § 10-7-301(6) for definition of "public record"); The Tennessean v. Elec. Power Bd. of Nashville, 979 S.W.2d 297, 300 (Tenn. 1998) (construing Tenn. Code Ann.  § 10-7-301(6)).

5. The Supreme Court held in Cherokee Childrens & Family Services Inc. that non-governmental agencies are subject to the act where a three-prong "functional equivalency" test is met. "[F]actors relevant to the analysis include, but are not limited to, (1) the level of government funding of the entity; (2) the extent of government involvement wit, regulation of, or control over the entity; and (3) whether the entity was created by an act of the legislature or previously determined by law to be open to public access." Id. at 79.

6. See, also, Kimberly Kay Allen et al. v. John Day & Powers Mgt. LLC, 213 S.W.3d 244 (Tenn. Ct. App. 2006) (holding that a privately held limited liability company, Powers Management Inc., providing management services to run a publicly owned area pursuant to a contract with the Sports Authority of the Metropolitan Government of Nashville was the functional equivalent of a government agency).

7. The recent decision of the Davidson County Chancery Court in Alex Friedman & Prison Legal News v. Corrections Corporation of America, (Davidson Chancery No. 08-1105-I) on July 29, 2008 (copy of petition available at: http://www.tennessean.com/assets/pdf/DN114051729.PDF) currently on appeal (No. M2008-01998-COA-R3-CV) may not help to clarify whether the legislature, in providing a statutory definition of "public record" in Tenn. Code Ann.  § 10-7-503(a)(1), implicitly embraced or codified the holding in Cherokee Childrens & Family Services since the petition for access in Prison Legal News was filed on May 19, 2008, prior to the amendments to Tenn. Code Ann.  § 10-7-503(a) taking effect. The plaintiff in that case alleged Corrections Corporation of America ("CCA") performed a government function because the keeping of prisoners and maintenance of prisons is a state function under the Constitution of Tennessee. The chancery court found that most of CCA's revenues are taxpayer-funded and that it performs a governmental function. Therefore, the chancellor held that CCA was the "functional equivalent" of a governmental agency based on the statutory definition of "public record" under Tenn. Code Ann.  § 10-7-301(6), as interpreted by Cherokee Childrens & Family Services Inc., not on the recently enacted definition of "public record" under Tenn. Code Ann.  § 10-7-503(a)(1).

8. The Tennessee Attorney General has opined this restriction means "that persons who are not citizens of Tennessee can be denied access to public records under the Tennessee Public Records Act", although "[t]he plain language of the statute does not prohibit the release of public records to non-citizens." Op. Tenn. Atty. Gen. No. 01-132. "[N]or does [the act] ... affirmatively require disclosure to non-citizens." Id.

9. See, e.g., Editorial, 184 NJ Law J. 1122, "Freedom of Information For Whom?" (June 26, 2006).

10. See, also, Tenn. Code Ann.  § 10-7-505(a) ("Any citizen of Tennessee"); Tenn. Code Ann.  § 10-7-507 ("any citizen, upon request"). A convicted felon who resides in Tennessee satisfies the "citizen" requirement. Goodwin v. Hendersonville Police Dept., 5 S.W.3d 633 (Tenn. 1999); Cole v. Campbell, 968 S.W.2d 274 (Tenn. 1998). But, compare, Tenn. Code Ann.  § 10-7-123(a)(4) which provides that "access must be given to all members of the public who desire access" "[o]nce a remote electronic access information system is in place ...." (Emphasis added.)

11. Even though the legislature amended Tenn. Code Ann.  § 10-7-505 by providing, effective as of July 1, 2008, that a petition for access can be brought not only in chancery court but also in circuit court, it purposefully left the "citizen of Tennessee" requirement intact. Additionally, the newly enacted language of Tenn. Code Ann.  § 10-7-503(a)(3) providing that "the person making the request shall have the right to bring an action as provided in  § 10-7-505" (emphasis added) underscores that only the individual "citizen" requesting access to public records has standing to bring a petition for access, not a third party, whether the third party is the individual's employer or otherwise. A principal cannot file a petition for access on behalf of an agent who made the request for personal inspection pursuant to Tenn. Code Ann.  § 10-7-503(a)(2), or vice versa. However, if the individual citizen's employer is an entity incorporated in or with a principal place of business in Tennessee, a request for access can be made by such employee on behalf of the corporation and both the agent and the principal have standing to bring a petition for access.

12. For example, effective May 14, 2008 a limited exception was added shielding public records relating to "marketing strategies and strategic plans" and allowing closed-door discussions under the Open Meetings Act, but this new provision is applicable only to hospitals. 2008 Pub. Chap. No. 917, Tenn. Code Ann.  § 68-11-269 (unofficial classification editorially provided by Westlaw). Similarly, there is no express exception applicable to local governments under Tenn. Code Ann.  § 10-7-504 for "trade secrets", although many other states provide for such exception in their open record laws. Additionally, the extent to which the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), Pub. L. No. 104-191, 110 Stat. 1936 (1996), codified at 42 USC 1320d through 1320d-8, provides an exception to the disclosure of public records is not only a function of the freedom of information law of each particular state, but also dependent upon the extent state law protects the confidentiality of medical records. Such confidentiality laws are far from uniform.

Similarly, while many states provide exceptions to disclosure under their public records laws to protect an individual's right to privacy, the Tennessee Public Records Act does not have a privacy exception, nor have the Tennessee courts recognized a common law or constitutional privacy right justifying an exception to disclosure to public records under the act. The courts of this state, unlike the majority of other jurisdictions, are adamant that there are absolutely no "public policy" exceptions under the Tennessee Public Records Act. Memphis Pub. Co. v. Holt, 710 S.W.2d 513, 517 (Tenn. 1986) ("It is the prerogative of the legislature to declare the policy of the State touching the general welfare, Baptist Memorial Hospital v. Couillens, 176 Tenn. 300, 311-12, 140 S.W.2d 1088, 1092-93 (1940). And where the legislature speaks upon a particular subject, its utterance is the public policy of the state upon that subject. Cavender v. Hewitt, 145 Tenn. 471, 475, 239 S.W. 767, 768 (1922)." Accord, The Tennessean v. Elec. Power Bd. of Nashville, 979 S.W.2d at 305.

13. However, in light of a 2005 district court decision in Delaware, questions have arisen as to whether the "citizen of Tennessee" provision could withstand scrutiny under the Privileges and Immunities Clause of Article IV, section 2 to the United States Constitution. In Lee v. Minner, 369 F.Supp.2d 527 (D. Del. 2005), appeal pending, the plaintiff, an author, commentator and lawyer residing in New York, who founded a nonprofit community and consumers' organization incorporated and headquartered in the State of New York, brought an action against the governor and attorney general of the State of Delaware in the district court of Delaware pursuant to 42 U.S.C.  § 1983 seeking declaratory and injunctive relief, on the grounds that the "citizens only" provision in the state's freedom of information law violated the Privileges and Immunities Clause. Id. at 529-30; 532. The court observed at 533:

Plaintiff contends that the "citizens only" provision of Delaware's FOIA impacts two fundamental concerns protected by the Privileges and Immunities Clause. Specifically, Plaintiff contends that the FOIA precludes him from practicing his "common calling" on substantially equal footing with the citizens of Delaware and prevents him from participating in governing processes that affect both residents and nonresidents. In support of his argument, Plaintiff points out that many national and international corporations and financial institutions that he reports on are incorporated in Delaware, and the accompanying regulation of these institutions by the State of Delaware has impact beyond the State's borders. As an investigative journalist, Plaintiff contends that Delaware's FOIA prevents full, fair and robust reporting on Delaware's regulatory activities by restricting access to necessary source materials to Delaware citizens only. Plaintiff also contends that Delaware's FOIA curtails his ability to participate in the governing process on matters of national economic and political importance.

The court also noted that plaintiff's organization, Inner City Press ("IPC") posts newsletters on its Web site, including one dedicated to regulatory developments in the State of Delaware. Id. at 530. The court further found that in connection with his journalistic work and his services to ICP and others, plaintiff travels to Delaware. Id. at 531.

In 2003 plaintiff made a public records request via e-mail sent to the Attorney General on behalf of Inner City Press for records related to the settlement the Attorney General negotiated with Household International, Inc. and its affiliates, and for records related to actions by the Attorney General involving potential predatory lending in connection therewith. The Attorney General responded by letter ten days later indicating: "Your address indicated that you are not a citizen and therefore would not be permitted to inspect and copy public records under [29 Del. C.  § 10003, Delaware's] FOIA." Id. Plaintiff also made a public records request in September of 2003 that the State Solicitor responded to three weeks later denying the request for the same reasons the Attorney General did previously. Id. Both requests were also denied on alternative grounds.

In defense of the "citizens only" requirement in Delaware's public records law, the state asserted that the Privileges and Immunities Clause applies primarily to "'economic discrimination' that would impact the nation's ability to 'function as a single economic union'..." Id. at 533. Delaware's counsel also asserted that the purpose of their public records law is "to define the political community and strengthen the bond between citizens and their government officials," and that the discriminatory approach of limiting access to "citizens" is necessary because the vitality of the Delaware's political processes depends upon the active participation of the citizens of the State. Id. at 535.

The court applied the three-prong test enunciated in Toomer v. Witsell, 334 U.S. 385, 396 (1948) and United Bldg. & Constr. Trades Council of Camden County and Vicinity v. Mayor and Council of the City of Camden, 465 U.S. 208, 218 (1984) to determine whether Delaware's public records statute providing that "[a]ll public records shall be open to inspection and copying by any citizen of the State during regular business hours ..." violates the Privileges and Immunities Clause. Lee v. Minner, 369 F.Supp.2d at 531-32.

First, the court must determine whether the statute "burdens one of those privileges and immunities protected by the clause." United Bldg., 465 U.S. at 218, 104 S.Ct. 1020. Second, the court must determine whether there is a substantial reason for the discriminatory approach of the challenged statute beyond the mere fact that the targeted group is comprised of citizens of other states. Toomer, 334 U.S. at 396, 68 S.Ct. 1156. Third, the defendants must demonstrate that "the discrimination practiced against nonresidents bears a substantial relationship to the State's objective." Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 284, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985).

Lee v. Minner, 369 F.Supp.2d at 532-33.

The court found that "[a]s the 'corporate home' for thousands of corporations in the United States, Delaware's regulations have nation-wide political and economic impact, and therefore, it seems reasonable that noncitizens should have the same access to public records as Delaware citizens." Id. at 534. Therefore, the court ruled in favor of plaintiff, finding that the "citizen" requirement in Delaware's public records law "impacts his fundamental privilege to pursue a common calling ... as a journalist and consumer activist on the same terms and conditions as journalists and consumer advocates who are citizens of the State of Delaware. Plaintiff is precluded from accessing materials openly available to Delaware citizens based solely on his status as a noncitizen of Delaware. Plaintiff cannot obtain these otherwise publicly available records without associating himself with a Delaware law firm or citizen, and thus, incurring additional expenses." Id. at 533-34. The court found that Delaware did not demonstrate that the "citizen" requirement in its public records law "bears a substantial relationship to the State's objectives." Id. at 536.

Even if Lee v. Minner is upheld on appeal, it is distinguishable. First, the facts involved are somewhat unique, as Delaware, presently and historically, has held itself out as the principal "corporate home" for a large measure of domestic corporations. Moreover, it is possible to articulate reasonable grounds for the "citizen" requirement in Tenn. Code Ann.  § 10-7-503(a)(2)(A) that are fundamentally different than those asserted by the State of Delaware in support of it's restriction. Therefore, the "citizen of Tennessee" requirement has a direct and substantial relationship to the state's objectives for inclusion of this restriction and, therefore, is constitutional.
Additionally, since many of the provisions of the Tennessee Public Records Act applicable to local governments constitute an unfunded mandate, it is entirely reasonable for the legislature to condition mandatory access under the act be limited to "citizens of Tennessee". In addition, under Tenn. Code Ann.  § 10-7-503(a)(2)(B), effective July 1, 2008 public records must be provided "promptly" or if that is not practicable, within seven (7) business days. Consequently, governmental entities in Tennessee are required to shift priorities as necessary to "promptly" respond to public records requests, which may delay, prevent or increase the cost of providing other essential services to their citizens. Essentially, this unfunded mandate would be exacerbated by permitting unfettered access to public records by anyone, whether or not the requester is a citizen of Tennessee.

Moreover, under the Tennessee Public Records Act "citizens" who successfully file a petition for access pursuant to Tenn. Code Ann.  § 10-7-505(a) may be awarded "all reasonable costs involved in obtaining the record, including reasonable attorneys' fees, against the nondisclosing governmental entity." Tenn. Code Ann.  § 10-7-505(g). The legislature could reasonably determine not to provide a statutory entitlement for access and a possible award of attorneys' fees and other costs to noncitizens seeking access to public records. Moreover, since noncitizens do not have a constitutional right to proceed pro se as litigants in courts of this state, there would be no legal basis for concluding that the "citizen" requirement in the Tennessee Public Records Act is fundamentally a violation of the Privileges and Immunities Clause.

Finally, it should be noted that when the legislature enacted the Tennessee Public Records Act in 1957, Memphis Pub. Co. v. Holt, 710 S.W.2d 513, 517 (Tenn. 1986), it codified the "public access doctrine" under the common law. Swift v. Campbell, 159 S.W.3d at 570 n.7. Historically, this doctrine only allowed for access to "true 'Public Records'", i.e., the type of records described in Board of Educ. of the Memphis City Schools v. Memphis Publ'g Co., 585 S.W.2d 629, 630 (Tenn. Ct. App. 1979), cert. den. (Aug. 6, 1979). The appellate court in Board of Educ. of the Memphis City Schools v. Memphis Publ'g Co. stated that "true public records" or public documents under Tennessee common law were "[c]ourt records and land title records which must be retained, preserved, and available to all citizens for the public welfare and tranquility... . Such records ... have been open for public view since there were such records and must be or they are useless." Id. (Emphasis added.) However, under the common law other records were open for inspection only if the requester demonstrated a "need to know". "At common law, there was no 'right to know.' Under the common law, a citizen was given access to public records only when he could show that the purpose of inspection was to vindicate a public or private right." City of Jackson v. Jackson Sun, 1988 WL 11515 at *4 (Tenn. Ct. App. Feb. 16, 1988) perm. app. den.

Access to documents described as "true public records" was not limited only to "citizens", since banks, mortgage companies and insurance companies and the like require access to such records, regardless of in which state their principal office is located, otherwise, "they are useless". Board of Educ. of the Memphis City Schools v. Memphis Publ'g Co., 585 S.W.2d at 630. Traditionally, such records have been available to anyone, whether a citizen, noncitizen or foreigner, who appears at the courthouse or office of recorder or register of deeds to inspect or copy such records. However, under the common law public access doctrine, "agency records" were not so openly available. Consequently, in enacting the Public Records Act the legislature was within its prerogative to limit access to public records to "citizens of Tennessee". As recently enacted language of Tenn. Code Ann.  §

8-4-604(a)(1)(B)(i) suggests, the purpose of the act is to facilitate and uphold "representative government." This is accomplished, in part, by providing a very broad right of access to all public records to "any citizen of Tennessee". Therefore, particularly as applied to "agency" records, the "citizen" limitation should not be deemed a violation of the Privileges and Immunities Clause because, at common law, noncitizens did not have a right to access "agency records" of this state.

Finally, the "citizen" requirement is not an anachronism. Tennessee is not alone, as Delaware, Arkansas, Virginia, Pennsylvania and other states' open records laws have a "citizen" requirement. See Desai, K., "Lee v. Minner: The End of Non-Citizen Exclusions in State Freedom of Information Laws?" 58 Admin. L. Rev. 235, 244 (2006). The "citizen of Tennessee" requirement bears some reasonable relation to the legislature's objectives in maintaining reasonable oversight over the dissemination of public records, particularly, "agency" records. With today's computerized society, when identity theft, cyber crime and homeland security are matters of serious public concern, the "citizen" requirement allows governmental entities some measure of oversight as to the dissemination of public records, particularly, electronic records. In Tennessee the requestor's purpose in seeking access to public records is irrelevant since the act provides "an absolute right to know," City of Jackson v. Jackson Sun, 1988 WL 11515 at *5 (Tenn. Ct. App. 1988), except as "otherwise provided by state law." Tenn. Code Ann.  § 10-7-503(a)(2)(A) (last clause). However, it is material to the state's board of professional responsibility if a Tennessee attorney knowingly or recklessly obtains public records on behalf of a noncitizen or anyone as part of an enterprise to commit fraud, identity theft or other criminal activity. Moreover, it is much easier for the long arm of the law to reach an instate attorney than a noncitizen requester intent on data mining or using public records to facilitate a fraudulent enterprise. Thus, the legislature, by maintaining the "citizen of Tennessee" requirement, has enabled public entities in the state to maintain some level of reasonable and legitimate oversight over the dissemination of public records.

14. Available at: http://www.comptroller.state.tn.us/openrecords/ScheduleDocument10-1-08.pdf.

15. Consequently, the provisions of Tenn. Code Ann.  § 10-7-503(a)(2)(C)(i) have sunset and are no longer effective. Tenn. Code Ann.  § 10-7-503(a)(2)(C)(ii). The "labor threshold" pursuant to the OORC Schedule of Reasonable Charges has been lowered to one hour. Tenn. Code Ann.  § 10-7-503(a)(2)(C)(i), effective July 1, 2008, temporarily provided that "a records custodian may require a requestor to pay the custodian's actual costs incurred in producing the requested material; provided that no charge shall accrue for the first five (5) hours incurred by the records custodian in producing the requested material... ." (Emphasis added.) Since this provision sunset the records custodian is permitted only to charge "reasonable costs", Tenn. Code Ann.  § 10-7-503(a)(7)(C)(i), and the OORC Schedule is a guideline as to what is reasonable.
A records custodian who "adheres to such policies and guidelines" and assesses costs not exceeding the OORC Schedule of Reasonable Charges is entitled to the "safe harbor" provisions of the statute.

16. 2007 Pub. Acts, c. 425  §1.

17. See, e.g., Tenn. Code Ann.  § § 10-7-504; 4-51-124(a)(5)(B); The Tennessean v. Elec. Power Bd. of Nashville, 979 S.W.2d at 303, quoting, State ex rel. Stephan v. Harder, 230 Kan. 573, 641 P.2d 366 (1982) ("We hold that the [public records] act implies a duty upon the agency to delete confidential and nondisclosable information from that which may be disclosed, and thus to carry out the act's purpose of making available for public inspection all disclosable parts of the public record."); Eldridge v. Putnam County, 2001, 86 S.W.3d 572 (Tenn. Ct. App. 2002) app. den. (confidential information subject to redaction at county expense); Op. Tenn. Atty. Gen. No. 02-016 (Feb. 6, 2002) (social security numbers in agency records).

18. Heretofore, under case law interpreting Tenn. Code Ann.  § 10-7-506(a) "reasonable costs" did not include "labor", unless the records custodian took efforts to reconstruct or recreate records that no longer existed or were no longer readily accessible, e.g., utilizing computer back-up tapes, or develop a special computer program solely to extract the records requested. As the Supreme Court stated in The Tennessean v. Elec. Power Bd. of Nashville, 979 S.W.2d at 305:

"We think the language and meaning of Tenn. Code Ann.  § 10-7-506(a) is plain: ... an agency may enforce reasonable rules 'governing the making of such extracts, copies, photographs or photostats.'" Those actual costs incurred ... for disclosing the material requested ... are recoverable under this statute. In contrast, there is no authority under the act allowing an agency to establish rules that would substantially inhibit disclosure of records. Moreover, limiting an agency to rules that govern only the actual 'making' of the extracts, copies, photographs or photostats is consistent with the legislative policy in favor of the fullest possible public access."
(Emphasis added.)

 

19. Compare, e.g., Tenn. ADC 0690-3-1.07(1) providing, in pertinent part: "All records of the Purchasing Division and the Board of Standards shall be available to the public during the regular State office hours. Any inspection of records shall not interfere with the operation of the Department." (Emphasis added.)

20. Previously, Tenn. Code Ann.  § 10-7-504(g)(1) read as follows:

(g)(1)(A) Personnel information of any police officer designated as working undercover may be segregated and maintained in the office of the chief law enforcement officer. Such segregated information shall be treated as confidential under this subsection (g). Such segregated information is the address and home telephone number of the officer as well as the address or addresses and home telephone number or numbers of the members of the officer's household and/or immediate family. Information in such file which has the potential, if released, to threaten the safety of the officer or the officer's immediate family or household members may be redacted if the chief law enforcement officer determines that its release poses such a risk.
(B) If the person requesting the information or the officer disagrees with the determination of the chief law enforcement officer, the decision shall be reviewed in a show cause hearing in chancery court.

21. See note 20, supra.


Craig E. Willis CRAIG E. WILLIS is assistant county attorney in the Shelby County Attorney’s Office in Memphis. Prior to that he was in private practice in Cleveland, Ohio. He received his law degree from the University of Michigan School of Law, Ann Arbor, and his undergraduate degree from Princeton University.