One of the few bills that passed in the final days before the Tennessee General Assembly recessed in March was a bill that corrected a mistake in the drafting of a public records exemption in 2002.
The legislation, signed into law by Gov. Bill Lee on March 25 and effective immediately, deletes the language “subsection (a)” where it appears in T.C.A. § 10-7-504 (a)(20) and replaces it with “subdivision (a)(20)”.
The exemption deals with confidentiality of municipal utility records. The bill clarified that the provisions in this particular subdivision only apply to the municipal utility records made confidential in subdivision T.C.A. § 10-7-504 (a)(20) — and not to all records that are exempt from the Public Records Act under T.C.A. § 10-7-504 (a).
The language, largely thought to be a drafting error by many who looked at it, had caused confusion because of the use of the word “subsection” in certain references, including in a reference on who had to bear the cost of redacting the specific municipal utility records. Under this exemption, the entity or person requesting the municipal utility records were required to pay all reasonable costs associated with redaction of materials.
The Office of Open Records Counsel has long advised government entities that the redaction cost shifting in this exemption only applied to the special situation outlined for municipal utilities. But some government entities had questioned that because the language used the word “subsection (a)” which they said meant it applied to all the exemptions listed under “subsection (a)” not just the the 20th one dealing with municipal utilities.
It most recently came up in the case Conley v. Knox County Sheriff, when the sheriff’s lawyers argued that Meghan Conley would have had to pay redaction costs to inspect certain records, although the sheriff never actually tried to charge her for such redaction.
State Sen. Rusty Crowe, R-Johnson City, who sponsored the original legislation in 2002, carried the bill and told the Senate State & Local Committee that the 2002 bill’s provisions were not intended to apply to all exemptions in the public records law, only to municipal utilities. He said passing the bill would correct the drafting language to its original intention and clear up any confusion.
The legislation passed both the Senate and the House without opposition.
The change in the wording makes no changes to the confidentiality of records. And no change to how redaction can be handled or who bears the cost of redaction when seeking municipal utility records.