What is a public record?

Tennessee’s Public Records Act, adopted in 1957, looks somewhat like an afterthought in comparison to the “sunshine in government” or freedom of information laws in other states.

The core of the law begins in T.C.A. 10-7-503 under Title 10, “Public Libraries, Archives and Records.” The key underlying phrase is powerful:

(2) (A)  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 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.

T.C.A. 10-7-503 (a)(2)(A)

The simple, strong wording of the statute mirrors the forceful intent later expressed in the Open Meetings Act and earlier in Article 1, Section 19, of the state Constitution that “no law shall ever be made to restrain the right” of the press “to examine the proceedings of the Legislature; or of any branch or officer of the government.”

In fact, in the enforcement section of the Public Records Act, the legislature instructed that the law be construed “so as to give the fullest possible public access to public records.” [T.C.A. 10-7-505 (d)].

The courts have consistently done this, even as the Legislature through the years has added confidentiality exemptions for nearly 600 types of records. Some of these exclusions are meant to protect non-newsworthy information about private individuals (such as medical information, Social Security numbers or home addresses), but others were enacted under the belief that certain information must remain secret for government to work efficiently.

Still, the Tennessee Public Records Act remains a powerful gateway for informed and timely participation by citizens in their government and with elected officials.

Records as routine as meeting agendas and packets sent to all members of a governing body allow citizens to know about  important issues like land use zoning, property annexations, budgets and taxation before governing bodies act. Minutes let citizens know what their representatives did.

The broad array of records documenting government activities is critical to helping citizens understand how government actions impact them.  Protecting access to those records is a citizen endeavor.

Definition of a public record

The law says that all records created or received by local or state government as part of transacting official business are open for inspection unless they are otherwise made confidential by “state law.”

(a) (1) As used in this part and title 8, chapter 4, part 6:

(A)  “Public record or records” or “state record or records”:

(i)  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 entity; and

(ii)  Does not include the device or equipment, including, but not limited to, a cell phone, computer, or other electronic or mechanical device or equipment, that may have been used to create or store a public record or state record;

T.C.A. 107-503 (a)(1)(A)

The format doesn’t matter.

Whether on paper or in electronic form, it’s still a public record. The caveat “unless otherwise provided by state law” is the trickiest part because the term “state law” has come to mean more than statutes created by the Legislature.

It can refer to the Constitution of Tennessee, common law, the rules of court, including some rules of civil and criminal procedure, and administrative rules and regulations. 

There are nearly 600 statutory exemptions, and more are added each year by the Legislature, sometimes with little scrutiny.

The Office of Open Records Counsel on Jan. 30, 2018, released a report identifying 538 statutory exceptions to the Tennessee Public Records Act. The office also created a searchable public database of the statutory exceptions containing new and amended exceptions and has added to the list each year since then.