The public records statutes that do apply to city offices are found in Title 10, Chapter 7, Part 5 of the T.C.A. The starting point for a discussion of the law in this area is the declaration found in T.C.A. § 10-7-503 that government records are open to public inspection. It reads as follows:
… All state, county and municipal records shall at all times during business hours ... 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.
This statute has been construed broadly by both the state attorney general and the Tennessee judiciary. The legislature made it clear that its intent in passing this law was to “... give the fullest possible public access to public records,” and it instructed the courts to exercise whatever remedies are necessary to ensure that purpose is fulfilled. The courts have ruled that a “presumption of openness” exists with government documents. That is not to say, however, that public access is totally without limitation.
Who Has Access?
The statute states that records must be open for inspection by any “citizen” of Tennessee. In keeping with the legislative intent to provide for liberal public access to government records, the Tennessee Supreme Court has determined that the word “citizen” includes convicted felons incarcerated as inmates within the Tennessee prison system. Although certain rights are stripped from individuals when they are convicted of a felony (e.g., voting, ability to hold public office), the court concluded that neither the Tennessee Public Records Act nor any other statute prevented a convicted felon from seeking access to public records. Neither should access be denied to anyone else who appears to be a citizen of this state.
The law is not as generous with nonresidents, however. Since the statute states that it grants public access to “any citizen of Tennessee,” the Tennessee Attorney General has opined that public officials may deny requests for copies of public records based on the lack of state citizenship. Since there is no fundamental federal right to access of government records and since Tennessee’s laws provide access only to state citizens, the attorney general reached the conclusion that it is not a violation of the privileges and immunities clause of the United States Constitution to deny access to people from other states who make requests for Tennessee records. Keep in mind that although the act does not affirmatively require disclosure of public records to noncitizens, neither does it prohibit the release of public records to noncitizens. It is within the discretion of the official who has custody of the records to determine whether or not access will be provided to noncitizens. Offices should develop a written policy on that subject and enforce it consistently.
How Should Access Be Provided?
The law states that records shall be open to inspection “during business hours.” Additionally, in all cases where a person has the right to inspect public records, he or she also has the right to take extracts or make copies of the record, or to make photographs or photostats of the record while it remains in the possession, custody and control of the official who has lawful custody of it. Every effort should be made to provide reasonable accommodation to parties requesting access to records; however, providing this service need not prevent the performance of other duties of the office. A request to see every record of an office and make a photocopy of each of them could bring the entire operation of an office to a halt. For this reason, the official who has custody of the records is also authorized by law to adopt and enforce reasonable policies governing the making of extracts, copies, photographs or photostats of the records. These regulations should be reasonable and not interfere with the intent of the legislature to provide broad public access to records. The official with custody of the record should strive to balance the right of access to records with his or her responsibility to preserve and protect the records. Regulations should be tailored to accommodate requests in a timely manner while allowing for the continued efficient functioning of the office and for the preservation and security of the records. Regulations that are intended to frustrate the ability of a citizen to access records will likely be found unreasonable and struck down by the courts. Examples of reasonable regulations might include:
- Providing that requests for inspection of a large number of records will be accommodated only by appointment and that copying will be pursuant to a written request;
- Prohibiting the inspection and copying of records by citizens without supervision of the official or an employee of the office; and
- Prohibiting the handling of older bound volumes or other fragile records by anyone other than an employee of the office so long as the information in the records is still provided in a usable format.
Be aware that there is a danger of theft, vandalism or damage by negligence inherent in allowing a member of the public access to government records. There is a profitable market for certain historical manuscripts. Across the country, government records are disappearing from government offices and reappearing for sale in antiques stores, flea markets and specialty shops. To prevent theft or vandalism, someone from your office should supervise the person accessing the records, or, at a minimum, the person accessing the records should be required to examine them in an open area.
The records custodian must promptly make available any public record not exempt from disclosure. If it is not practicable for the record to be made available promptly, the custodian must within seven business days either (1) make the record available, (2) deny the request in writing including the basis for denial, or (3) furnish the requestor a completed request response form stating the time necessary to produce the record.
The records custodian may require a request for copies of a public record to be in writing or on a form provided by the Office of Open Records Counsel in the comptroller’s office. The custodian also may require a photo identification of the requestor or other form of identification suitable to the custodian.
The records custodian may require the requestor to pay the reasonable costs, including certain labor costs of producing and copying public records. The Office of Open Records Counsel has established a recommended schedule of fees for this purpose.
Office of Open Records Counsel
The General Assembly established the Office of Open Records Counsel in the comptroller’s office to answer questions and provide information to the public about public records. This office provides informal opinions, creates forms for records requests and responses, establishes a suggested fee schedule, and mediates disputes about records. Information created by this office is available on its website at www.comptroller.state.tn.us/openrecords/.
Denial of Access — Liability
Any citizen of Tennessee who is denied the right to personal inspection of a public record in whole or in part is entitled to petition the court to review the actions that were taken to deny access to the record. Petitions may be filed in the chancery court or circuit court for the county where the records are located or in any other court exercising equity jurisdiction in the county. Upon the filing of the petition, the court shall, at the request of the petitioning party, issue an order requiring the defendant to appear and show cause why the petitioner should not be granted access to the record. No formal written response to the petition is required. The burden of proof rests on the person having custody of the records to show why public access should not be allowed.
If the court determines that the petitioner has a right to inspect the records, the records must be made available unless the defendant timely files for appeal or the court certifies a question with respect to disclosure of the records to an appellate court. If a public official is required to disclose records pursuant to these procedures, he or she cannot be held civilly or criminally liable under state law for any damages caused by the release of the information. If the court determines that the government entity knowingly and willfully refused to disclose a public record, it may, at the discretion of the judge, assess all reasonable costs involved on obtaining the record, including attorney’s fees, against the governmental entity. In determining whether denial of access was willful, the court may consider any guidance provided the records custodian by the Office of Open Records Counsel.
 T.C.A. § 10-7-503.
 See generally, Memphis Publishing Co. v. Holt, 710 S.W. 2d 513 (Tenn. 1986).
 T.C.A. § 10-7-505(d).
 Griffin v. City of Knoxville, 821 S.W. 2d 921, 924 (Tenn. 1991).
 Cole v. Campbell, 968 S.W. 2d 274 (Tenn. 1998).
 Op. Tenn. Atty Gen. No. 99-067 (March 18, 1999).
 Op. Tenn. Atty Gen. No. 99-067 (March 18, 1999).
 T.C.A. § 10-7-506(a).
 T.C.A. § 10-7-506(a).
 T.C.A. § 10-7-505(a).
 T.C.A. § 10-7-505(b).
 T.C.A. § 10-7-505(c).
 T.C.A. § 10-7-505(e).
 T.C.A. § 10-7-505(f)
 T.C.A. § 10-7-505(g)