The Tennessee Public Records Act is a statutory creation of broad scope and application. The legislature has stated that the act “shall be broadly construed so as to give the fullest possible public access to public records.” T.C.A. § 10-7-705(d). The act requires that all state, county and municipal records be open for public inspection during normal business hours unless the records are confidential.
A. Who Is Entitled to Records?
Any citizen of the state of Tennessee is entitled to make requests for access to any public records. The attorney general opined in 2001 that persons who are not citizens of Tennessee may be denied access to public records. See Op. Tenn. Atty. Gen. 01-132 (Aug. 22, 2001). Other courts, however, specifically a federal district court, have found identification requirements to be improper impedances to public records. See Lee v. Minner, 369 F.Supp. 2d-527 (Del. 2005).
The law permits a records custodian to require any citizen making a request to view a public record or to make a copy of a public record to present a government-issued photo identification that includes the person’s address. If a person does not possess photo identification, the records custodian may require other forms of acceptable identification.
For purposes of the act the term “citizen” is given a broad scope. Even a citizen with a felonious criminal record is entitled to make open records requests under the act. Cole v. Campbell, 968 S.W. 2d 274 (Tenn. 1998).
Municipalities may not deny access to public records based upon the requesting citizen’s use or intended use of the records. Requesters cannot be required to provide an explanation of their intended use of the records. Custodians of records should not inquire into a requester’s purpose for requesting the records. Questioning could be interpreted as an attempt to discourage citizens from seeking materials that they are legally entitled to inspect.
Occasionally, a request for records comes not from an individual, but rather from a corporation. Courts have not considered whether, for the purposes of the Open Records Act, corporations and other conglomerations of persons are also considered citizens under the act and are entitled to request and receive public records in the same manner as individuals. The Office of Open Records Counsel stated, in a non-binding 2012 opinion, that as a corporation cannot be issued a government-issued identification, it does not meet the definition of “citizen”. Thus a corporation is not entitled to records under the act. However, if the person requesting records on behalf of a company can produce a government-issued identification with a Tennessee address he or she is entitled to records.
B. What Materials Are Covered by the Act?
Almost every record created, maintained or received by a municipal government is covered by the act. The act defines “public record” as:
Hence, to determine whether a document is a public record, one often must determine if the document was received in connection with the transaction of official business by any governmental agency. This determination should be made by considering the totality of circumstances.
It is important to note that just because a record is covered by the act it is not necessarily open to public inspection. Many records covered are confidential and protected from disclosure.
Furthermore, the definition of record explicitly excludes the device or equipment used to create or store a record, including a cell phone or computer. T.C.A. § 10-7-503(a)(1). For example a requestor may be entitled to the information stored on a municipal laptop, however, he or she is not entitled access to the laptop itself.
C. Records of Non-governmental and Quasi-Governmental Bodies
The Open Records Act has been construed to cover the records of non-governmental and quasi-governmental bodies in receipt of public monies as well as the boards of these bodies. To determine if the body is subject to the act, the Supreme Court offers a “functional equivalency” test. See Memphis Publishing Co. v. Cherokee Child & Family Services, 87 S.W. 3d. 67 (Tenn. 2002). If the body is acting as the functional equivalent of government, its records are covered by the act. Here, too, one must consider the totality of circumstances; however, three factors mentioned as specifically relevant are:
- The level of governmental funding;
- The extent of governmental involvement or control; and
- Whether the entity was created by the government.
Non-governmental bodies found to be covered by the act include a sports authority pursuant to legislation, (Op. Tenn. Atty. Gen. No. 96-011 (Feb. 6, 1996)); and sublessees of municipally owned property, Creative Restaurants, Inc. v. City of Memphis, 795 S.W. 2d. 672 (Tenn. Ct. App. 1990).
D. Documents in Electronic and Other Non-paper Formats
As the quantity of records produced by municipalities expands, the use of technology becomes increasingly necessary to process and store them. As this technology is implemented into the public sphere, municipalities must ensure that electronic storage does not fetter public access. For purposes of confidentiality, the act makes no distinction between electronic and paper records.
The legislative language defining public records is intentionally broad. The language of T.C.A. § 10-7-121 provides that electronically stored records must, like their paper counterparts, be made available for public inspection. This, coupled with case law, solidifies the notion that regardless of format, a public record is open to the public during municipal business hours.T.C.A. §§ 47-10-101 et seq. allow cities to conduct business by electronic means and to determine the extent to which they will send, accept, and rely on electronic records and electronic signatures. T.C.A. § 47-10-112 provides that electronic records may be retained and have the same status as original records. The act covers a multitude of formats accepted as public records, including “electronic data.” The act does not, however, suggest that the requester has the right to choose in what format a requested record may be produced. The Tennessee Supreme Court has stated that if records are stored in an electronic database the producing municipality is required to provide the public information in the format requested. Hence, if a citizen requests a hard copy of a computerized spreadsheet or word processing document, it is the duty of the municipality to provide the hard copy. The Tennessean v. Electric Power Board of Nashville, 979 S.W. 2d 297 (Tenn 1998). This opinion additionally suggests that municipalities have the duty to perform reasonable searches for specific information contained within a more comprehensive electronic database if the requesting party is willing to pay the cost.
T.C.A. § 10-7-512 explicitly states that municipalities “shall adopt a written policy on any monitoring of electronic mail communications and the circumstances under which it will be conducted.” E-mail communications seem clearly subject to the act, but there is still question as to the openness of personal e-mails sent from government computers. It is best to assume that these, too, are open.