Government response to public records requests

Before 2008, when the first major changes in 25 years were adopted, it was not unusual for government officials to tell journalists or citizens to “show me where the law says I have to give you that.”

Requests could languish for weeks. A citizen would have to file a lawsuit before the agency could be compelled to follow the law.

Now the law requires a governing entity to explain why it is denying access and sets a deadline for producing information or explaining why not. Doing nothing about a records request constitutes denial without justification and gives the public more leverage in and out of court. The law is specific in its instructions in T.C.A. § 10-7-503(a)(2)(B):

(B) The custodian of a public record or the custodian’s designee shall
promptly make available for inspection any public record not specifi cally exempt from disclosure. In the event it is not practicable for the record to be promptly available for inspection, the custodian shall, within seven (7) business days:
(i) Make the information available to the requestor;
(ii) Deny the request in writing or by completing a records request response form developed by the office of open records counsel. The response shall include the basis for the denial; or
(iii) Furnish the requestor a completed records request response form developed by the office of open records counsel stating the time reasonably necessary to produce the record or information.

Getting the legal basis for denial

Getting the specific legal basis for denial, as required in T.C.A. § 503(a)(2)(B)(ii), is a critical step for journalists and citizens because it gives them a way to verify whether officials are using a valid exemption.

Elisha Hodge, the state’s former Open Records Counsel, explained what should constitute a “basis for the denial” to the local newspaper in Cleveland this way:

“In Tennessee, in order for the public to be denied access to a record that exists, the record has to be confidential pursuant to a provision within the law. The records custodian has an obligation to provide the requestor with the specific provision within the law that makes the requested record confidential.”

Sometimes, reminding an official that a basis for denial is required will shake loose a record when the official realizes no legal excuse exists. When a dispute arises, the Office of Open Records Counsel can also assist by providing information about the law.