Clarifying the Tennessee Public Records Act

by Zack. R. Gardner, Esq.

On June 15, 2018, Kim Locke, wife of former acting Tennessee Bureau of Investigation (TBI) Director Jason Locke sent emails to then-Governor Bill Haslam asserting that her husband was having an affair with a Tennessee Department of Mental Health and Substance Abuse Services (TDMHSAS) employee, Sejal West and were doing so on State time.

Between June 15 and June 18, 2018, Gov. Haslam asked the Tennessee Department of Safety and Homeland Security and the State Comptroller’s Office to investigate. Also on June 18, the District Attorney General for the 20 th Judicial District announced he was joining the investigation.

Ms. Locke also contacted journalist Phil Williams, an employee of Scripps Media Inc. Mr. Williams began investigating the matter, submitting several requests for public records, including all travel reimbursement and per diem requests submitted by Mr. Locke; transaction summaries for any credit cards or p-cards assigned to Mr. Locke; all logs of phone calls made on Mr. Locke’s state-assigned mobile phones since November 2016; Mr. Locke’s electronic calendar beginning in November, 2016; and any text messages or emails between Mr. Locke and Ms. West. Mr. Williams submitted a similar request to TDMHSAS regarding Ms. West as well as information related to her personnel file and job status.

On June 22, 2018, the State refused to disclose the records, citing an ongoing criminal investigation. In response, Scripps filed a Petition for Access in the Trial Court pursuant to the Tennessee Public Records Act (TPRA), specifically citing Tenn. Code Ann. § 10-7-503(a)(2)(A):

All state, county and municipal records shall, at all times during business hours, [...], 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. Tenn. Code Ann. § 10-7- 503(a)(2)(A) (Supp. 2018).

In September 2018, the State finished its investigation and released the requested documents. The Trial Court, after finding the public interest exception to the Mootness Doctrine applicable, ruled the records were exempt from disclosure. The Trial Court stated that, even though the requested records were of the type described in Tenn. Code Ann. § 10-7-503(a)(2)(A), they became investigative records not subject to the TPRA under the “unless otherwise provided by state law” clause and, therefore, were governed by Tenn. R. Crim. P. 16, which exempted the records from TPRA requests for disclosure.

On appeal from the Trial Court, the Tennessee Court of Appeals affirmed, in part, and overruled, in part, the Trial Court, finding that the public interest exception applied, but that the records in question were not exempt from TPRA. The Court of Appeals reasoned that the records were created in the ordinary course of business and not as part of an ongoing criminal investigation. The Court stated, “Indeed, these records were accessible [via the TPRA] from their inception. That they were later relevant to a criminal investigation did not alter either their nature or where they are kept.” The Court also distinguished this case from Tennessean v. Metro. Gov’t of Nashville , which involved the request of records created by a private entity, Vanderbilt University, which subsequently became relevant to a criminal investigation.

Of interest, the Court of Appeals also dismissed Scripps Media Inc. from the complaint as it lacked standing as a non-citizen of Tennessee, and its employee, Mr. Williams, remained as the sole appellant in the case.

Ultimately this decision affirms the ability of citizens of the State of Tennessee, including journalists, to obtain all state, county, and municipal records that are created during the normal course of business and unrelated to an ongoing criminal investigation. The State may not deny access to these records simply because they became, or may become, relevant to a subsequent criminal investigation. As the Court of Appeals stated, “[u]nder the State’s position, even public records accessible via the TPRA for years prior may abruptly become exempt from disclosure, an astonishing proposition.” (emphasis added).