Is public records law becoming thing of the past?

By RICHARD L. HOLLOW

In the law, we frequently say that something is a fiction when it is not what it appears to be. As the law in Tennessee evolves, in many ways, the Public Records Act ("PRA") is in danger of becoming a fiction.

The recent wildfire tragedy in Sevier County and the continuing denial of public records by the local district attorney may be the best example of this.

The core of the PRA's protection of citizen access is contained in its definition of a record in T.C.A. 10-7-503(a)(1)(A):

"...'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."

That quotation establishes the parameters of what the legislature intended a public record to be. Citizen access to records falling within that category is governed by T.C.A. 10-7-503(a)(2)(A) which provides:

"All state, county and municipal records shall, at all times during business hours... be open for personal inspection by any citizen of this state, and those in charge of the records shall not refuse such right of inspection to any citizen, UNLESS OTHERWISE PROVIDED BY STATE LAW."

Recently, the office of Open Records' Counsel of the state Comptroller expressed an opinion that there are over 300 exceptions to citizen access contained in Tennessee statutes, administrative regulations, court rules and other sources. In the present Sevier Count situation three statutes and a court decision are most relevant in a very real sense to the working journalists.

Despite the presumptive openness of public records, exceptions create areas where citizen access may be legitimately denied.

News reports show 14 people perished as a result of the recent wildfire tragedy in Sevier County, and economic losses are approaching $1 billion. Despite the intense public interest and concern this tragedy has created, there is little information available to the public.

The reason for the dearth of information is an order from Fourth Judicial District Attorney General Jimmy Dunn directing that all records pertaining to the fire and its investigation be withheld.

To the extent that the Tennessee Bureau of Investigation has become a party to the investigative process, its records are confidential. TBI records are not public records unless the TBI elects to grant access or reveal their contents.

T.C.A. 37-1-154 relates to law enforcement records of juveniles. This and the following statute apply because the fire was allegedly started by two male juveniles. They are unnamed and have been charged with an offense related to starting the fire. However, in juvenile court, conduct prohibited by state law is only classified as a delinquent act if it falls into the category of offenses listed as serious crimes such as murder, rape, kidnapping, etc. or unless the child is sent to the criminal court for prosecution as an adult.

"Unless a charge of delinquency is transferred for criminal prosecution ... the interest of national security requires or the court otherwise orders in the interest of the child, the law enforcement records and files shall not be open to public inspection or their contents disclosed to the public...."

There are five exceptions to this confidentiality declaration, but none apply to citizens or the media.

The Tennessee Attorney General opined in a 2000 legal opinion that the media does not have a legitimate interest in juvenile court proceedings.

The reasoning of Attorney General Paul Summers' opinion is similar to the reasons applied by the recent Tennessee Supreme Court decision about police records in the Vanderbilt rape case, though those defendants were not juveniles.

District Attorney General Dunn has publicly stated that he believes confidentiality is required to protect the right of the juveniles to a fair and impartial trial.

The final exception applicable to the Sevier County situation arises from the Tennessee Supreme Court's application of its own rules.

The Court in the Vanderbilt case discussed the evolution of the application of the court's Rules of Criminal and Civil procedure as an exemption from public disclosure, starting in 1987 in a case entitled Appman v. Worthington.

The Court held that under its Rule 16 only the parties to a criminal case have access to police investigative records while the criminal case and any collateral challenge to the criminal convictions are pending. Thus the records are not public.

The evolution of the Appman doctrine was now complete. This cloak of confidentiality begins when the police open their file as a criminal investigation and closes only when the last appellate remedy has been exhausted. In a capital murder case, that could be for a decade or longer.

What remedy does a citizen or a reporter have given the existence of this law? The person dissatisfied with the actions of the records custodian would be entitled to challenge that decision in the chancery, circuit or another court with equity jurisdiction in the county where the records are located.

The burden of proof for justifying non-disclosure rests upon the custodian of the records. However, we know from our own experiences that court proceedings are both protracted and expensive.

Given the present situation, the antidote for these exclusionary provisions may simply be good reporting practices. Careful cultivation of sources and acquisition of information, relying upon Tennessee's shield law protections, appear to be one of the better avenues of approach to this problem.

We should all remember, however, that a privilege against disclosure or a confidentiality requirement may be waived by the person to whom that protection is given. Therefore, any law enforcement agency can voluntarily provide the information to the public. This is routinely done. However, it is quite frequently selective in nature.

Rick Hollow is TPA's longtime general counsel and operates TPA's Legal Hotline from his offices in Knoxville.