A new law that went into effect in late April will allow government officials to seek relief in court from people who use the public records process with an intent to disrupt government operations.
State Senator Ferrell Haile
The bill was aimed at curbing public records requests from so-called “bad actors” but faced opposition when the legislation was first proposed because it was built around a definition of harassment that some thought was too vague and broad. The rewritten legislation, signed into law as Public Chapter 242, was supported by Tennessee Coalition for Open Government.
The legislation adds a new subdivision in the public records law, T.C.A. 10-7-503(a)(7)(C). The new provision allows a government entity to petition a court for injunctive relief if a person requesting to view or receive copies of public records is making the request “with the intent to disrupt government operations.”
If the records custodian believes a person is making public records requests with an intention to disrupt operations, the custodian must first notify the person in writing stating the specific problem conduct. If the conduct continues, the custodian can then ask a court to enjoin the person from making further public records requests.
The court can enjoin the person for up to one year but must make a finding of the person’s intent to disrupt government operations using the “clear and convincing” evidence standard.
Law puts bad actors on notice
The new law effectively puts requesters on notice that the public records process should not be misused as a method to simply harass government officials, although the law does not use the term harassment. A fiscal note with the bill suggested the cost on government would not be significant, noting that a requester who receives a written notice will either change their conduct in making requests or stop making requests, avoiding the need for government to go to court.
The bill was largely guided by state Sen. Ferrell Haile, R-Gallatin, after the city of Gallatin complained of a citizen who flooded the city with public records requests over several months with seemingly little interest in the records received. The person had asked to inspect the records instead of getting copies, thus avoiding all labor costs. When he would come to view the records, he spent only a few minutes flipping through pages, Haile said.
TCOG supported reducing the impact of bad actors but pushed for safeguards to limit the chance that government officials might use the process to seek injunctions against citizens with whom they disagreed or found annoying. The biggest concern was for political gadflies and others who have an intense interest in local government and make frequent requests for public records.
Instead of defining the behavior as “harassment” and linking it to a specific volume of requests made, as the previous bill did, the new law targets those who use the public records process itself as a weapon to disrupt government operations instead of as a tool to gather information.
The law has a built-in tracking component to see how it is applied. It requires records custodians to file a written report with the Office of Open Records Counsel if they seek an injunction that includes the petition and any orders issued by the court. The open records counsel must include a summary of the reports in its annual report to the legislature.
