Volokh files First Amendment suit against Williamson County over access to court records

Eugene Volokh, a well-known lawyer, podcaster and author in First Amendment circles, has filed a lawsuit against the Williamson County Circuit Court Clerk and the county’s archive department alleging that its application of the Tennessee Public Records Act violates constitutional and common law rights to access court records.

Williamson County denied Volokh’s request for certain court records because he is not a resident of Tennessee. The county was relying on the Tennessee Public Records Act that requires disclosure of state and local records only to “citizens” of Tennessee.

Volokh’s filed his petition in the federal district court in Nashville. He alleges that denying him the records because he lives in California violates First Amendment and common law rights “enjoyed by all Americans, not just Tennessee citizens” to access judicial records. The Supreme Court has long recognized this right as has the 6th U.S. Circuit Court of Appeals.

He also claims that the actions by Williamson County officials violate the U.S. Constitution’s Privileges and Immunities Clause by depriving him of a “fundamental right under our constitutional structure.” The denial “based on TPRA’s residency requirement imposes an impermissible barrier to Mr. Volokh’s ability to pursue his litigation and research — one that Tennessee residents do not face.”

Volokh requested records in court case

Volokh told the Nashville Banner that he had come across a Tennessee appellate court decision (one involving a request for an order of protection by a Nolensville city commissioner and a counter anti-SLAPP petition) and wanted to see the underlying circuit court orders and other documents in the case.

“Now I want the trial court decision, and they’re not giving it to me,” Volokh told the Nashville Banner. “Of course, I’m trying to make a point here, but this originated from my just coming across this case, finding it interesting for my research, and wanting to get access to it.”

Volokh is a founder and co-author of the long-running legal blog, The Volokh Conspiracy. He also hosts the podcast Free Speech Unmuted and teaches law, including First Amendment law, at the University of California.

U.S. Supreme Court on residency privilege in public records laws

A state public records law that limits required record disclosures to state citizens was upheld by the U.S. Supreme Court in 2013 in a Virginia case, McBurney v. Young. The Supreme Court noted in that case that Virginia courts, however, operated under a disclosure statute different than the executive branch and the statute governing disclosure of court records did not distinguish between residents and nonresidents. (It simply refers to “any person.”) Access to court records by non-residents, therefore, was not an issue as the court ruling was focused on access to records of the executive branch.

Tennessee’s statute does not have a similar specific distinction on access to court records. The Tennessee Public Records Act defines records as “all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings, or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental entity…) (T.C.A. §10-7-503(a)(1)(A)(i).

The operative language that many government entities use to deny records requests to non-Tennessee residents is this (emphasis added):

(2)(A) All state, county and municipal records shall, at all times during business hours, which for public hospitals shall be during the business hours of their administrative offices, be open for personal inspection by any citizen of this state, and those in charge of the records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law.

TCOG  has argued that government entities are not required to deny record access to non-residents

TCOG has long argued that the public records law does not require a government entity to withhold public records from non-residents and that government entities are free to provide their records to anyone. In fact, almost all government entities often given records to people who do not live in Tennessee, though not necessarily in response to a public records request.

However, the movement to adopt strict rules around accessing public records has grown as government entities complain they have to spend time redacting records before giving them out (a service which they often can and do charge for.) For example, a public records policy audit conducted by TCOG in 2018 showed that many local government entities have adopted rigid rules for accessing public records, including  84% of those surveyed that required a requester to provide a state-issued driver’s license or some other state-issued identification before they will respond to the request. Such requirements have frustrated residents, some of who have complained about having to email their driver’s license to the entity even when the person they are speaking to knows them.

The Volokh lawsuit comes as local courts are making a slow but sure movement toward digital filing of court records. In the end, the digital solution could promise easier and cheaper access to court records, one that doesn’t require a clerk to find and email records or someone to go to a clerk’s office to get a paper file. The operation of that system will be key and should include public access, not just access by lawyers to such digital files.

(Note: An earlier version of this article incorrectly stated that the court records sought by Volokh were related to a defamation claim. The records sought were related to a case involving a request for an order of protection by the city commissioner.)