Tennessee high court opens access to government agency computer files

Tuesday, November 17, 1998

In a resounding victory for public access to computerized information, the Tennessee Supreme Court ruled Monday that information contained in computer data files constitutes a public record under state law.

The high court ruled that the Electric Board of Nashville, a municipal utility that does business as Nashville Electric Service (NES), must disclose to The Tennessean its customer names, addresses and telephone numbers to ensure “the fullest possible access to public records.”

Frank Sutherland, editor of the newspaper, said the paper sought the information to research a story about parents giving false addresses so their children could attend particular schools. “We wanted the information in the NES database to compare it to the school board's database to see if the addresses matched up,” he said.

When the paper and Sutherland sought to obtain the information, NES refused, saying that it did not possess a record containing the specific information. The agency argued that it should not have to create a “new record” from information on its computers to satisfy the paper's request.

The government agency said in court documents that it would cost $4,500 to write a computer program to provide The Tennessean with the particular information requested by the paper. The electric company also argued that if it had to provide the information, the paper should have to pay the costs, which totaled about $86,000, to notify its customers that the requested information was being shared with the newspaper.

The paper agreed that it should bear the costs incurred by NES in writing the computer program, but asserted that the information was a “public record” under the meaning of the state's public-record law. The paper also argued that that law did not require it to reimburse NES for costs under the company's customer-notification policy.

The trial judge ruled in Feb. 1996 that the information was a public record under state law, but ruled that the paper should have to pay the costs associated with producing the record and notifying customers.

In Feb. 1997, the Tennessee Court of Appeals reversed the trial court judge on the “public record” issue, ruling that NES was not required to create a new record.

On appeal, the Tennessee Supreme Court ruled that “the Court of Appeals' emphasis on the physical format of a record is inconsistent with the language in the Public Records Act and its policy of full disclosure.”

The court cited cases from Florida, Illinois and Kansas for the principle that “the particular format of a record is not dispositive of whether it must be disclosed to the public.”

The court wrote: “We recognize the competing interests at stake: the public's right to access and a government agency's burden of complying with the Public Records Act. Yet once information is entered into a computer, a distinction between information and record becomes to a large degree impractical. In our view, it makes little sense to implement computer systems that are faster and have massive capacity for storage, yet limit access to and dissemination of the material by emphasizing the physical format of a record.”

The state high court also ruled that the paper should not bear the costs of notifying NES customers of the information request. The public-records law provides that a record custodian can adopt “reasonable rules” governing the making of copies or photographs of sought-after information.

NES argued that the notification policy was a reasonable means to protect its customers' privacy and safety. To support its argument, NES noted that it had been sued in 1994 for providing the Nashville address of a criminal informant who was murdered prior to the trial in which he was supposed to testify.

The Tennessee Supreme Court wrote that it did “not question the sincerity or intention of NES” in making a policy that “on the surface” furthers privacy interests.

However, the court ruled that there was no authority under the public-records law to require the paper to implement NES' customer-notification policy. The court ruled that requiring the agency to recover only the costs of producing the records, in this case writing the computer program, “is consistent with the legislative policy in favor of the fullest possible public access.”

The court reasoned that NES could not adopt policies in an “ad hoc” fashion that inhibit rights of access under state law. According to the court, such decisions should be made by the state Legislature.

Sutherland said he had no problem with NES having a customer-notification policy, but said the Tennessee Supreme Court properly recognized that requiring the paper to pay $86,000 would in effect prohibit access to public records.

“The important part of this decision is that it defines for Tennessee that computer records can be viewed as public records under state law,” he said.

Al Knight, attorney for The Tennessean, agreed, saying: “This is an important and helpful decision that settles two important issues under the state public-records law.”

“The case is significant because it provides that information in a computer is a public record and that if information is in a computer, even if not in the specific format requested, it should still be provided,” Knight said. “The Tennessee Supreme Court properly ruled that as a matter of policy the public-records statute should be construed in favor of full access to information.”

In a statement, NES said it was “disappointed” in the Tennessee Supreme Court's ruling. The agency said it was “taking no action on requests for information until our attorneys have had an opportunity to analyze the court's decision.”

“This case fundamentally involves the public's right to know,” said Richard Hollow, general counsel to the Tennessee Press Association, which filed a friend-of-the-court brief in the case, The Tennessean v. Electric Power Board of Nashville.

Hollow, who drafted portions of the state public-record law, said: “If the court had recognized an artificial distinction between material contained in computer data files and other forms of records, then the government would have been able to withhold substantial amounts of information from the public.”

“If the Tennessee Supreme Court had ruled the other way, it could have been potentially a very serious restriction on the public's right of access,” Hollow said.