Update, 7-5-2017: I asked the Secretary of State’s Office about what voter registration records were available under the Tennessee Public Records Act from the state. They responded today to say that county election commissions are the custodians of permanent voter registration records, which are open for public inspection as per T.C.A. 2-2-127. The state does have a central list of voter registration records that reflects the data that has been transferred to it by each county. However, the Secretary of State’s Office said that any list generated from this data would be governed by the statute T.C.A. 2-2-138 (e) that requires anyone requesting such a list from the state to certify they will use it for political purposes only and pay a cost set by the office. I’ve updated parts of this post to reflect information provided by the state office.

Last week, Tennessee Secretary of State Tre Hargett declined to comply with a request from President Donald Trump’s newly formed election integrity panel for Tennessee voter registration records.

Tennessee Secretary of State Tre Hargett

“Although I appreciate the commission’s mission to address election-related issues, like voter fraud, Tennessee state law does not allow my office to release the voter information requested to the federal commission,” said Hargett.

Trump’s Advisory Commission on Election Integrity made a request to every state for voters’ full first and last names, middle names or initials, addresses, dates of birth, political party, voting history, the last four digits of voters’ Social Security numbers and criminal background information.

Some states are complying, and handing over information that they say is open under their public records laws. But some are not.

In Tennessee, are voter registration records public?

The answer is, yes. State law says voter registration records are open for public inspection, though Social Security numbers must be redacted.

But another part of the law which requires county election commissions to compile or create “voter registration lists” says those lists are to be provided only to those who sign a statement saying they will be used for “political purposes.”

What’s in a voter registration record? A person filling out a voter registration form in Tennessee would include their full name, residential legal address, date and place of birth, where they were last registered to vote and their social security number.

Their voting history — which elections they have voted in — would be recorded by county election commissions.

Political party is not included on the voter registration record.

The permanent voter registration record is also required to include the question, “Have you ever been convicted of a crime which is a felony in this state, by a court in this state, a court in another state, or a federal court?” If the answer is yes, the person is supposed to list the crimes and dates of conviction, and if a court has restored the person’s citizenship rights.

So, is what Trump’s commission requested public record? Yes, with the exception of Social Security numbers that must be redacted, and information that is not gathered. (T.C.A. 2-2-127)

2-2-127. Permanent registration records open to inspection — Social security number redaction and use.

(a) Permanent registration records as public records shall be kept in a safe place by the commission, shall be available for public inspection, and may not be removed from the office of the commission except as required for the performance of duties under this title or in compliance with court orders; provided, that a registrar shall make a reasonable effort to redact a person’s social security number from a record before such record is made available to any person other than the holder of the number if such record is stored in a computer readable format on April 12, 1999. When such records are first stored in computer readable format or when changes are made to any computer program that stores or accesses records, a registrar shall redact a person’s social security number from a record before such record is made available to any person other than the holder of the number. The coordinator of elections shall also redact the social security number before making any voter registration records available to the public.

(b) Nothing in subsection (a) shall be construed to prohibit an agency of a state, county, or municipal office from using a person’s social security number for internal purposes or to prohibit a county election commission and its staff from using a person’s social security number for enforcement of the election law as provided in this title, and nothing in subsection (a) shall be construed to limit the public’s access to that record.

So you can look at registration records, and get redacted copies of them. But what about getting a voter registration list of all voters, including information such as voting history, generated by county election commissions or by the state? The caveat in the law says that a person requesting those lists must certify on a form provided by the state election commission “that such list will be used for political purposes.”  It also says such lists “shall” be available for purchase, meaning a requester has to pay for them. (T.C.A. 2-2-138 — see below)

“Political purposes” is not defined. Usually the records are purchased so candidates can send mailers about themselves to likely voters or make other campaign-related plans.

It appears to me that Trump’s commission is asking for information in public records that are stored electronically and is largely not exempt from the Tennessee Public Records Act. A list of voters compiled by local election commissions (or by the state) may be exempt unless the requester says he or she will use it for “political purposes.” But because “political purposes” is not defined, it seems someone could argue their purposes are political even if they are not a candidate who wants to reach potential voters. For example, could political purposes cover someone who was seeking the list to advocate for a law change? Or does “political purposes” only include campaigning for office?

There may be one other hangup for the Trump commission, which is common for non-residents seeking state and local records in Tennessee.

Our state’s public records laws only mandate that records be made available to citizens of the state. While nothing prohibits state agencies from sharing public records with non-residents, some state agencies have used this to deny public records requests from out-of-state news media organizations and others.

Trump’s commission could easily overcome this problem. They would simply would need to find someone in the state to make the request.

T.C.A. 2-2-138.  Voter registration lists — Purchase by citizens.

(a) In counties of this state having a population in excess of one hundred eighty thousand (180,000) according to the United States census of 1970 or any subsequent United States census, or in any computerized county, it is the duty of the county election commission to prepare or cause to be prepared each month a listing, by voting precinct, of all persons registered to vote in each precinct during the preceding month. However, in the discretion of the commissioners of the county election commission, such listing may be prepared on a bimonthly basis.

(b)  (1) Such list, and any other voter registration information such as voter history, if compiled, shall be available for purchase for a price not to exceed the cost of production. This list shall be available to any person who certifies on a form provided by the state election commission that such list will be used for political purposes. The state election commission shall establish a uniform cost for this information. Any county election commission whose cost of production exceeds this rate may petition the state election commission and be granted an increase upon establishing its actual cost to the satisfaction of the state election commission. If the information is provided on computer generated media such as disk, diskette, tape, telecommunications or any other form of magnetic media, then the information shall be provided in non-proprietary and non-encrypted form. Minimum data standards shall be EBCDIC (Extended Binary Coded Decimal Interchange Code), ASCII (American Standard Code Information Interchange) or BCD (Binary Coded Decimal).

(2) The list, and any other voter registration information, shall be the property of the county election commission and the state. Any vendor of the county election commission having access to the voter registration data shall only use such data to service the county election commission and shall be prohibited from using such data other than for purposes of assisting the county election commission and the coordinator of elections. Non-authorized use by the vendor of the data shall constitute a Class B misdemeanor and grounds for decertification by the state election commission.

(c) The county election commission in counties with a population over two hundred fifty thousand (250,000) according to the 1980 census shall make voter registration lists available for purchase by any interested citizen, upon request and payment of the cost, at a price not in excess of the cost to prepare and publish such lists. The county election commission in counties with a population over two hundred fifty thousand (250,000) according to the 1980 census shall act upon such request within seven (7) days of receipt of the request, and reasons for rejection or modification of such request, if any, shall be set out in writing.

(d)  (1) Any computerized county, as defined in § 2-1-104(a), shall make the list required by this section available on computer diskette to any person who certifies on a form provided by the state election commission that such list will be used for political purposes.

(2) A false certification made pursuant to the provisions of this subsection (d) is a Class B misdemeanor, punishable only by a fine of five hundred dollars ($500).

(e) Any list of registered voters compiled by the coordinator of elections shall be sold at a price established by the secretary of state. Any money received by the secretary of state from the sale of such lists shall be deposited in the voting machine loan fund established in § 2-9-114. This list shall be available for purchase to any person who certifies on a form provided by the state election commission that such list will be used for political purposes only.