Open Records Part I

The Basics

Government transparency is essential for a strong democracy. To ensure such transparency, federal and state governments have passed legislation to provide citizens the right to copy or inspect records. Over the next month we will look at the laws governing open records in Tennessee.

The Freedom of Information Act (FOIA) 

Before we begin it’s important to note that state and local governments are not subject to “FOIA” request as the act applies to federal agencies. In Tennessee, state and local governments are governed by the Tennessee Public Records Act (TPRA) located in TCA § 10-7-503 et seq. As such, we will focus our attention on what TPRA provides and some important exceptions to provided therein. Finally, before we discuss the details it is imperative that all readers understand that courts interpret the provisions of TPRA broadly such to provide the fullest possible access to public records. TCA § 10-7-505(d). Therefore, unless the law provides an exception, the records are open to Tennessee citizens.

What is a “Record”

Records are documentation made or received in connection with a transaction of official government business. Therefore, it is the substance of the material that makes it a “public record” rather than the format in which it is stored. Some examples of common records may include:

• Electronic Communications

  • Email

  • Text/SMS Messages/Messaging Apps

  • Social Media Post

• Video Recordings

• Human Resource Records

  • Investigations

  • Applications and Personal Records

  • Travel and Leave Information

• Meeting Agenda’s and Minutes

• Contact and Bidding Documents (If awarded)

• Budget Records and Financial Records

Keep in mind, there are hundreds of exceptions to TPRA. While we will focus on some of the major ones in this series, a complete searchable database can be found HERE.

Who is subject to TPRA? 

Typically, TPRA applies only to state agencies, counties and municipalities. However, courts have ruled that a private entity may be subject to such a request if they serve as the “functional equivalent” of a government agency. When determining whether a private entity is subject to TPRA the court will look at several factors including 1) the level of government funding, 2) the governments involvement or control of the entity and 3) whether the entity was created by a legislative act.

All entities subject to TPRA must have a policy that includes 1) how to make a requires, 2) forms needed to make a request, 3) their process for responding to request, 4) fees and billings procedures and 5) the contact information for the entities Public Records Request Coordinator (PRRC). TCA § 10-7-503(g).

Who can access public records? 

Any citizen of the state of Tennessee has the right to inspect public records. Therefore, the entity may require presentation of identification with the requesters photo and address. Proof of citizenship is discretionary so the entity should include such requirement in their policy.

Understand that “citizen” means person. As such, corporations, partnerships and limited liability corporations cannot request records. However, if an employee at such an artificial entity requests a record and provides the necessary identification, the government entity may not deny the request.

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In Part II of this series, we will focus on important exceptions to TPRA, the process of making an open records request and the timeline an entity must follow in responding to a request.

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