The Court of Appeals has affirmed a Sumner County trial court’s ruling that the denial of a public records request because it was sent by email violated the Tennessee Public Records Act.
Sumner County Board of Education attorney Jim Fuqua.
In March 2014, the Sumner County Board of Education denied Ken Jakes’ request to see the board’s public records policy, saying he had to make the request in person, or send it via U.S. Postal Service. Jakes sued, the Sumner County trial court found in his favor, and the school board voted to appeal the ruling.
The school board’s attorney, Jim Fuqua, testified that he was relying on advice from the Office of Open Records Counsel, a state agency housed in the Comptroller’s Office, in denying the emailed request. The office was created to answer questions about the public records law for citizens and government entities.
But trial court judge Dee David Gay, and now the Court of Appeals, did not buy the arguments that the form of the request invalidated it.
In the opinion written by Judge John W. McClarty and joined by Frank G. Clement and W. Neal McBrayer, the court said:
Court of Appeals Judge John McClarty
The TPRA (Tennessee Public Records Act) provides that it “shall be broadly construed so as to give the fullest possible access to public records.” Tenn. Code Ann. 10-7-505(d). As such, “we interpret the terms of [the TPRA] liberally to enforce the public interest in open access to the records of state, county, and municipal governmental entities.” Memphis Publ’g Co. v. Cherokee Children & Family Servs., Inc., 87 S.W.3d 67, 74 (Tenn. 2002). While each governmental entity was tasked with crafting its own public records policy, the General Assembly specifically prohibited entities from imposing “requirements on those requesting records that are more burdensome than state law.” Tenn. Code Ann. 10-7-503(g).
As noted by the learned trial court, the General Assembly placed no restriction on the form or format of a request for inspection of public records other than: (1) any request for inspection shall be sufficiently detailed to enable the government entity to identify the specific records; (2) any citizen making a request to view a public record may be required to present photo identification but shall provide identifying information prior to inspection; and (3) a request for inspection cannot be required to be initiated by a written request. Tenn. Code Ann. 10-7-503(a). Additionally, the courts in Tennessee have held policies requiring the citizen requesting inspection to appear in person unlawful…
Here, Plaintiff was forced to either make his request by mail or in person. These requirements, considered individually, have been specifically held unlawful. Likewise, we hold that these requirements, even when considered together, do not provide the fullest possible access to public records in accordance with the TPRA in its prior form. With these considerations in mind, we uphold the trial court’s ruling that the March 21 request was a “valid public records request for inspection” in accordance with the TPRA and that the BOE erroneously denied the request.
The Sumner County Board of Education has spent more than $238,000 on the litigation through November 2016, well before oral arguments in the case. The final total that would include the entire cost of appeal has not yet been reported. (Update: Hendersonville Standard reporter Tena Lee contacted me after this post published, and said that she requested and received the school board’s legal invoices for 2017 that showed an additional $9,000 was spent on the case bringing the total spent in legal fees to an estimated $247,000.)
Four government-related entities (who receive membership dues and other other revenue from government entities) filed amicus briefs in the case, arguing that government entities have policy interests and concerns if they are required to accept public records requests by email. Those entities were the Tennessee Risk Management Trust, the Tennessee School Boards Association, the Tennessee Organization of School Superintendents and the Association of Independent and Municipal Schools and the Tennessee Municipal League Risk Management Pool, Inc. Their chief concerns were cost and security if government entities were required to accept emails from public records requesters.
If the school board’s director of information services testimony in the court hearing were to be believed, it would cost the school district an additional $40,000 per year to accept public records requests by email. The school board employee in charge of handling public records request, Jeremy Johnson, had testified that he receives 12 to 15 public records requests a year.
John Williams
Rick Hollow
Tennessee Coalition for Open Government also filed an amicus in the case, arguing that the law does not allow a government agency to establish rules that would inhibit the disclosure of public records for inspection. The amicus was written by attorneys John Williams of Nashville and Rick Hollow of Knoxville. The Society of Professional Journalists Legal Defense Fund provided financial assistance for TCOG’s legal effort, with support from the Middle Tennessee Professional Chapter of the Society of Professional Journalists. Also, TCOG received financial support for the amicus from the Knight FOI Fund administered by the National Freedom of Information Coalition.
Finally, in June of 2017, three years after being sued, the Sumner County Board of Education voted to accept records requests via email. The Hendersonville Standard reported that the change came about because of an update to the public records law that clarified the ways that citizens can make requests, including by email. State Rep. Courtney Rogers, R-Goodlettsville, has said she sponsored the bill largely because of the dispute in her home county.
