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The Sunshine Law

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					Review of Legal Requirements for Open Meetings and Records
                            and
                    Conflicts of Interest




                 JOINT WORK SESSION
           BOARD OF MAYOR AND ALDERMEN
            CITIZEN ADVISORY COMMITTEES
         MONDAY, DECEMBER 22, 2003 – 6:00 P.M.


                      Douglas Berry
                       Karen Beyke
            Weed, Hubbard, Berry & Doughty, PLC
            201 Fourth Avenue North, Suite 1420
                    Nashville, TN 37219
                      (615) 251-5444
                    THE OPEN MEETINGS (SUNSHINE) LAW

What is the purpose and spirit of the law?

The Open Meetings Act of 1974, commonly referred to as
Sunshine Law, can be found at Tennessee Code Annotated
§8-44-101. The spirit of the law is stated in T.C.A. § 8-44-
101:

           A) The general assembly hereby declares it to be the policy of this state that the
           formation of public policy and decisions is public business and shall not be
           conducted in secret.
           b) This part shall not be construed to limit any of the rights and privileges
           contained in article I, § 19 of the Constitution of Tennessee1.

Does the Act run afoul of Constitutional rights to free speech?

           No.

        The courts have held that the Open Meetings Act, by requiring that any
deliberation by governing body toward official decision must be conducted openly, does
not infringe rights of free speech of members of governing bodies and does not exercise
chilling effect upon free expression. U.S.C.A.Const. Amend. 1; T.C.A. § 8-4401 et seq.
Dorrier v. Dark, 537 S.W.2d 888, rehearing denied 540 S.W.2d 658 (1976).

Just how strictly must we comply with the law?

Strict compliance with Open Meetings Act is a necessity if it is to be effective. T.C.A. §
8-44-101 et seq. Zseltvay v. Metropolitan Government of Nashville and Davidson
County, 986 S.W.2d 581, appeal denied (Tenn.Ct.App. 1998). See penalties below.
The courts will construe the Open Meetings Act most favorably to the public. It is all
encompassing and applies to every meeting of a governing body except where the
statute, on its face, excludes its application. T.C.A. § 8-44-101 et seq., Souder v. Health
Partners, Inc., 997 S.W.2d 140 (Tenn.Ct.App. 1998).




1
    Article I, § 19, of the Tennessee Constitution, provides:

           "That the printing presses shall be free to every person to examine the proceedings of the Legislature; or of
           any branch or officer of the government, and no law shall ever be made to restrain the right thereof. The free
           communication of thoughts and opinions, is one of the invaluable rights of man, and every citizen may freely
           speak, write, and print on any subject, being responsible for the abuse of that liberty. But in prosecutions for
           the publication of papers investigating the official conduct of officers, or men in public capacity, the truth
           thereof may be given in evidence; and in all indictments for libel, the jury shall have a right to determine the
           law and the facts, under the direction of the court, as in other criminal cases."




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To whom does the act apply?

The Sunshine Law provides in T.C.A. § 8-44-102(b)(1) that the term “governing body” to
which the law applies means:

       The members of any public body which consists of two (2) or more members,
       with the authority to make decisions for or recommendations to a public body on
       policy or administration....

The term "public body" is not defined in the Act; however, the Tennessee Supreme
Court has noted with respect to the term that:

       It is clear that for the purpose of this Act, the Legislature intended to include any
       board, commission, committee, agency, authority or any other body, by whatever
       name, whose origin and authority may be traced to State, City or County
       legislative action and whose members have authority to make decisions or
       recommendations on policy or administration affecting the conduct of the
       business of the people in the governmental sector. Dorrier v. Dark, 537 S.W.2d
       888, 892 (Tenn. 1976).


      Therefore, the courts have looked to whether a committee is in a position to
formulate public policy and decisions. Hastings v. South Cent. Human Resource
Agency, 829 S.W.2d 679 (Tenn.Ct.App. 1991). The Act has been held to apply to
advisory boards (for example, an airport advisory board, Tenn. Op. Atty. Gen. No. 96-
131, 1996) and other boards or committees (for example, Beer Boards, Tenn. Op. Atty.
Gen. No. 84-240, 1984, committees of a county-owned hospital, Tenn. Op. Atty. Gen.
No. 96-131, 1996 and civil service boards, Tenn. Op. Atty. Gen. No. 81-669, 1981).


Does the Act apply only to a formal meeting?

       The courts look at whether a meeting has taken place to determine if the Act has
been violated. First, the phrase “meeting” has not been defined in the Act in terms of
formality, time or place, instead, “meeting” has been defined in terms of its purpose. If a
public body convenes for one of two purposes: (1) in order to make a decision or (2) in
order to deliberate toward a decision, then it is a meeting within the scope of the Act.
Neese v. Paris Special School District, 813 S.W.2d 432, 435 (Tenn.Ct.App.1990).

       It has often been questioned whether a “meeting” has occurred if the number of
people involved in the communication is less than a quorum. The Attorney General has
given the following advice:

       “Although the case law does not lend itself to hard and fast rules because the
       decisions are so fact dependent, some cautious advice readily appears….
       Private meetings between mayor and members of city council where public



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        business is discussed could raise questions concerning violations of the Open
        Meetings Act; court decisions under the Act are fact-dependent; two or more
        members of a governing body should not deliberate toward or make a
        decision regarding public business without complying with the Act. T.C.A.
        § 8-44-101 through –201; Tenn. Op. Atty. Gen. No. 88-169, 1988.


Do the requirements of the Act apply if we do not deliberate? What does it mean
to “deliberate?”

      The court used the definition of "deliberate" from Black's Law Dictionary and said,
"To deliberate is 'to examine and consult in order to form an opinion.... [T]o weigh
arguments for and against a proposed course of action.' " Neese, 813 S.W.2d at 435.
Deliberation under the Open Meetings Act "refers to discussing, debating, and
considering an issue for the purpose of making a decision and does not include a
discussion solely for the purpose of information gathering or fact finding." The
University of Tennessee Arboretum Society, Inc. v. The City of Oak Ridge, slip op.
(E.S.Tenn.Ct.App. 1983), permission to appeal denied (August 29, 1983).

What does the Act require when it comes to voting?

        T.C.A. § 8-44-104(b) reads:

        “All votes of any such governmental bodies shall be by public vote or public ballot
        or public roll call. No secret votes, or secret ballots, or secret roll calls shall be
        allowed. As used in this chapter, 'public vote' shall mean a vote in which the 'aye'
        faction vocally expresses its will in unison and in which the 'nay' faction,
        subsequently, vocally expresses its will in unison.”

        Straw votes and secret ballots are prohibited. Tenn. Op. Atty. Gen. No. 81-246,
1981.

What information must meeting minutes contain?

        T.C.A. § 8-44-104(a) requires that meetings' minutes "shall include, but not be
limited to, a record of the persons present, all motions, proposals and resolutions
offered, the results of any votes taken, and a record of individual votes in the event of a
roll call." Grace Fellowship Church of Loudon County, Inc. v. Lenoir City Beer Bd., 2002
WL 88874 (Tenn.Ct.App. 2002).


What if I happen to “bump into” another alderman or
committee member?

The Sunshine Law provides in T.C.A. § 8-44-102(c) that:




                                                                                            4
       Nothing in this section shall be construed as to require a chance meeting of two
       (2) or more members of a public body to be considered a public meeting. No
       such chance meetings, informal assemblages, or electronic communication shall
       be used to decide or deliberate public business in circumvention of the spirit or
       requirements of this part.

“Only if no decisions are made at such meetings and there is no deliberation toward a
decision would these meetings pass muster under the Sunshine Law. Even then,
however, meetings like this can give the impression that public business is being
conducted in secret, causing perception and political problems for the involved parties.”
 See MTAS Opinion: Sunshine Law, Huffer, Dennis, 4/10/2002.


Does this Act mean we MUST deliberate at a called meeting?

       The Open Meetings Act does not require the members of a public body to
verbalize or discuss a matter prior to a vote. T.C.A. § 8-44-101 et seq. Baltrip v. Norris,
23 S.W.3d 336, appeal denied (Tenn.Ct.App. 2000).


Does the Act mandate that citizens have the right to participate in meetings
covered by the Act?

       No.

      While the Open Meetings Act requires all meetings of entities subject to the Act
be open to the public, it does not guarantee all citizens the right to participate in the
meetings. T.C.A. § 8-44-101 et seq.; Souder v. Health Partners, Inc., 997 S.W.2d 140
(Tenn.Ct.App. 1998).


Can we ask a citizen to leave the meeting?

       It is not advisable.

        The practice of certain regulatory boards, in requesting parties to leave their
presence and permit private discussion, is not directly prohibited by the express
language of the act. Conditions may be such that this procedure is the most feasible
way of conducting business. In some situations, however, the board's request might
effectively circumvent the provisions of the open meetings law. Even though the board
may inform individuals of their right to remain, its request could be a powerful tool for
coercing them to waive that right. Because of the request a party may understand that
his remaining will antagonize board members and influence their decision against him.
In such a context, this practice of the board would have a chilling effect upon the
exercise of the individual's right to be present during deliberations of public governing
bodies, contrary to the whole design of the open meetings law. Therefore, it is the



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opinion of this office that regulatory boards, in requesting individuals to leave their
statutorily open meetings, do not necessarily violate the open meetings law, T.C.A. §§
8-44-101 to 8-44-106, so long as the individuals leave on a purely voluntary basis.
Nevertheless, such a request can amount to improper coercion if the individuals feel
coerced into waiver of their statutory right to be present.

Is notice of the meeting required? If so, what type of notice is necessary?

        Any such governmental body which holds a meeting previously scheduled by
statute, ordinance, or resolution or a special meeting shall give adequate public notice
of such meeting. T.C.A. § 8-44-103(a)(b). Circumstances of each case must be taken
into account in determining adequacy notice of special meetings under Open Meetings
Act. T.C.A. § 8-44-103(b). Kinser v. Town of Oliver Springs, 880 S.W.2d 681, appeal
denied (Tenn.Ct.App. 1994). Notice of meeting required by Open Meetings Act is
sufficient as long as it gives interested citizens a reasonable opportunity to exercise
their right to be present at a governing body's meeting; the notice need not invite public
participation in a public meeting in order to satisfy the Act's requirements. T.C.A. § 8-44-
103. Souder v. Health Partners, Inc., 997 S.W.2d 140 (Tenn.Ct.App. 1998).

        In an unpublished opinion, the Tennessee Court of Appeals for the Eastern
Section outlined a three-prong test for "adequate public notice" under this provision.
Englewood Citizens for Alternate B v. Town of Englewood, No. 03A01-
9803-CH-00098, slip op. (E.S.Tenn.Ct.App. June 24, 1999). Under
that test, the notice must be posted in a location where a member of
the community could become aware of such notice; the contents of the
notice must reasonably describe the purpose of the meeting or the
action proposed to be taken; and the notice must be posted at a time
sufficiently in advance of the actual meeting in order to give citizens
both an opportunity to become aware of and to attend the meeting. Slip op.
at 2. The Court concluded that posting notice of the meeting in the city hall, the post
office, and a local bank satisfied the first requirement of the test. The Court stated "that
for purposes of this prong of the adequate notice inquiry, the town can provide adequate
notice simply by choosing reasonable public locations and posting notices at those
public locations on a consistent basis." Id.

       Are there penalties for inadequate notice?

       Yes. It is a violation of the Act, with the same penalties. (See penalties below.)


             Can we discuss litigation with the City Attorney?
             If so, will the attorney-client privilege protect our communications?

        Application of the Open Meetings Act to discussions between public bodies and
their attorneys regarding pending litigation violates constitutional provisions defining the
division of power of the state government and limitations of such powers and, therefore,



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discussions between a public body and its attorney concerning pending litigation are not
subject to the Open Meetings Act so long as the public body is a named party in the
lawsuit; however, once any discussion whatsoever begins among members of the
public body regarding what action to take based upon advice from counsel, whether it
be settlement or otherwise, such discussion shall be open to the public and failure to do
so shall constitute a clear violation of the Open Meetings Act. T.C.A. § 8-44- 101 et
seq.; Const. Art. 2, §§ 1, 2; Smith County Educ. Ass'n v. Anderson, 676 S.W.2d 328
(Tenn. 1984).

       The courts have loosened the definition of “pending litigation” to include “pending
controversy likely to result in litigation.” Baltrip v. Norris, 23 S.W.3d 336 (Tenn.Ct.App.
2000), Van Hooser v. Warren County Bd. Of Ed., 807 S.W.2d 230 (Tenn. 1991).

        However, the Tennessee Supreme Court has held that the attorney-client
privilege afforded by T.C.A. § 23-3-1052 was waived by the passage of the Open
Meetings Act. Smith County Educ. Ass'n v. Anderson, 676 S.W.2d 328 (Tenn. 1984).
The attorney-client evidentiary privilege only extends to communications from the client
to the attorney. D. Paine, Tennessee Law of Evidence, § 96, p. 111-112 (1974), and
confidentiality is destroyed when those communications take place in the presence of a
third party. Hazlett v. Bryant, 241 S.W.2d 121, 123 (Tenn. 1951). The privilege is
designed to protect the client and because it belongs to the client, may be waived by
him. When the third party in whose presence such communications take place is an
agent of the client, the confidentiality is not destroyed. McCormick § 91 (2d ed. 1972);
D. Paine, Tennessee Law of Evidence, § 97, p. 112 (1974). Therefore, any
communications made in violations of the Act may not be protected under the attorney-
client privilege commonly afforded in the private sector.

        Discussion with the City Attorney about settlement offers has the same
restrictions. Cooper v. Williamson County Bd. of Educ., 746 S.W.2d 176 (Tenn. 1987)
(attorney-client exception to Open Meetings Act was applicable to gathering of school
board and attorney to discuss settlement offer made by principal in connection with
dismissal; board made no decision at gathering and no preliminary deliberations were
undertaken by board. T.C.A. § 8-44-101 et seq.)

What about fact-finding and field trips and the like?

       A “meeting” does not include “any on-site inspection of any project or program.”
T.C.A. §8-44-102 (b)(2). Of course, extreme care should be taken not to deliberate
toward a decision regarding the project or program.



2
  § 23-3-105. Attorney-client privilege
 No attorney, solicitor or counselor shall be permitted, in giving testimony against a client, or person who
consulted the attorney, solicitor or counselor professionally, to disclose any communication made to the
attorney, solicitor or counselor as such by such person, during the pendency of the suit, before or
afterwards, to the person's injury.


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Can we meet with consultants? If so, are there any limitations?

       Meetings between a single member of the Board and a consultant are not
meetings of a governing body under the Open Meetings Act. So long as the members
do not use the meetings with the consultant to deliberate toward or to make a decision
indirectly, these meetings are not meetings of a governing body subject to the Open
Meetings Act. So long as the consultant uses the views of the individual members as a
general guide in producing a final list, this practice does not appear to permit the
members to vote in secret in violation of § 8-44-104(b). Op.Atty.Gen. No. 99-144, July
30, 1999.

       The meeting of one alderman with a third-party consultant is not itself a meeting
of a governing body; unless the third-party consultant is an intermediary communicating
the opinions or comments of one alderman to another, the aldermen could not be
deliberating with each other when no communication occurs between or among them.
So long as the Board members do not use the meetings with the consultant to
deliberate with other members of the Board indirectly, these meetings are not meetings
of a governing body subject to the Open Meetings Act. Chance meetings, informal
assemblages, or electronic communications may not be used as a means to decide or
deliberate public business in circumvention of the spirit or requirements of the Act.
Tenn. Code Ann. § 8-44-102(c); Tenn. Op. Atty. Gen. No. 99-193, 1999.

Can we attend a meeting covered by the Act electronically (i.e., by
speakerphone, cell phone or e-mail)?

       No.

       T.C.A. § 8-44-108, which permits participation in meetings by electronic or other
means by its terms applies only to boards, agencies and commissions of state
government. See Attorney General Opinon No. 99-152, Aug. 16, 1999 (a that member
of the Williamson County School Board was not permitted to vote by speaker phone at a
scheduled meeting even when all requirements of the Open Meetings Act were met).

What are the penalties for violating the Act?

       Under T.C.A. § 8-44-105, the sanctions are severe. Any action taken at a
meeting in violation of the Act shall be void and of no effect, but nullification of actions
taken at such meetings shall not apply to any commitment, otherwise legal, affecting the
public debt of the entity concerned.

Statutory remedies of nullification and injunctive relief and penalties, among other
things, for violation of Open Meetings Act are not meant to be mutually exclusive. T.C.A.
§§ 8-44-105, 8-44-106. Zseltvay v. Metropolitan Government of Nashville and Davidson
County, 986 S.W.2d 581, appeal denied (Tenn.Ct.App. 1998). T.C.A. § 8-44-106 gives
the Court jurisdiction over the parties and subject matter for a year, with powers of
injunctive relief. The section states:



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       (c) The court shall permanently enjoin any person adjudged by it in violation of
       this part from further violation of this part. Each separate occurrence of such
       meetings not held in accordance with this part constitutes a separate violation.

       (d) The final judgment or decree in each suit shall state that the court retains
       jurisdiction over the parties and subject matter for a period of one (1) year from
       date of entry, and the court shall order the defendants to report in writing
       semiannually to the court of their compliance with this part.


       Nullification has its limits, as seen in Van Hooser v. Warren County Bd. of Educ.,
807 S.W.2d 230 (Tenn. 1991) (school board's violation of Open Meetings Act, by
approving settlement conditions in private meeting, did not entitle terminated teacher to
reinstatement where it was determined, at subsequently held public hearing, that
dismissal was warranted.)

Can a violation of the Act be cured?

       A governing body that may have violated the Act may cure its violation by
conducting a subsequent meeting at which it ratifies the prior action. A cure meeting will
not be effective, however, unless the ultimate decision is made in accordance with the
Open Meetings Act, and it is a new and substantial reconsideration of the issues
involved. Neese v.Paris Special School District, 813 S.W.2d 432 (Tenn. Ct. App. 1990);
Tenn. Op. Atty. Gen. No. 00-095, 2000.

        Curing the violation does not mean a violation never happened. For example,
trying to amend minutes to correct a failure to record meetings was still held to subject a
board to sanctions in Zseltvay v. Metropolitan Government of Nashville and Davidson
County, 986 S.W.2d 581, appeal denied (Tenn.Ct.App. 1998).

       In order to cure, it must be emphasized that full discussion of the issues should
occur. See Souder v. Health Partners, Inc., 997 S.W.2d 140 (Tenn.Ct.App. 1998)
(decision of board of trustees of county general hospital district, following meeting open
to public, to ratify and confirm all prior actions by board of directors for
preferred provider organization (PPO) failed to cure prior violations
of Open Meetings Act concerning closed meetings at which PPO's
board decided to limit provider network, where there was no
discussion by board of trustees at open meeting which
pertained specifically to previously adopted limitation of
network of physicians).




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10
                              CONFLICTS OF INTEREST

Statutory law:
§6-54-107. Interest of officer in municipal contracts
prohibited.
   (a)    No person holding office under any municipal corporation shall, during
          the time for which such person was elected or appointed, be capable
          of contracting with such corporation for the performance of any work
          which is to be paid for out of the treasury. Nor shall such person be
          capable of holding or having any other direct interest in such a
          contract. "Direct interest" means any contract with any business in
          which the official is the sole proprietor, a partner, or the person having
          the controlling interest. "Controlling interest" includes the individual
          with the ownership or control of the largest number of outstanding
          shares owned by any single individual or corporation.
   (b)    No officer in a municipality shall be indirectly interested in any
          contract to which the municipality is a party unless the officer publicly
          acknowledges such officer's interest. "Indirectly interested" means
          any contract in which the officer is interested but not directly so, but
          includes contracts where the officer is directly interested but is the
          sole supplier of goods or services in a municipality.


   (c)    (1) Any member of a local governing body of a county or a
          municipality who is also an employee of such county or municipality
          may vote on matters in which such member has a conflict of interest if
          the member informs the governing body immediately prior to the vote
          as follows:
   "Because I am an employee of (name of governmental unit), I have a
   conflict of interest in the proposal about to be voted. However, I declare that
   my argument and my vote answer only to my conscience and to my
   obligation to my constituents and the citizens this body represents."


(2) In the event a member of a local governing body of a county or a
municipality has a conflict of interest in a matter to be voted upon by the body,
the member may abstain for cause by announcing such to the presiding
officer. Any member of a local governing body of a county or municipality who
abstains from voting for cause on any issue coming to a vote before the body
shall not be counted for the purpose of determining a majority vote.




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(3) The vote of any person having a conflict of interest who does not inform the
governing body of such conflict as provided in subdivision (c)(1) shall be void if
challenged in a timely manner. As used in this subdivision, "timely manner"
means during the same meeting at which the vote was cast and prior to the
transaction of any further business by the body.


(4) Nothing in this subsection shall be construed as altering, amending or
otherwise affecting the provisions of § 12-4-101(a). In the event of any conflict
between this subsection and § 12-4-101(a), the provisions of § 12-4-101(a) shall
prevail.


[Code 1858, § 1398 (deriv. Acts 1857-1858, ch. 7, § 1); Shan., § 1995; Code
1932, § 3497; T.C.A. (orig. ed.), § 6-626; Acts 1983, ch. 388, §§ 2, 6; 1985, ch.
236, § 1; 1986, ch. 765, §§ 1-3.]




6-54-108. Penalty for unlawful interest of officer
       Every officer of such corporation who shall unlawfully be concerned in making
such contract, or who shall unlawfully pay money upon the same to or for any person
declared incapable in §6-54-107 shall forfeit the amount so paid; and such officer shall
be jointly and severally liable to an action for the same, which action may be prosecuted
by any citizen of the corporation in its name.


CITY CHARTER: CONFLICTS OF INTEREST


        Article VIII, Section 16. Officers not to be Interested in City Contracts or Work.
No member of the Board of Mayor and Aldermen, or officer elected by said Board, shall
be interested in any contract, or work of any kind whatever, under its control and
direction, and any contract in which any such person shall have an interest shall be void
and cannot be enforced. [As Renumbered by Priv. Acts 1976, ch. 295, § 3]


                                 OPEN RECORDS ACT

§ 10-7-503. Inspection by citizens; confidentiality; law enforcement personnel
records




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 (a) Except as provided in § 10-7-504(f), all state, county and municipal records and
all records maintained by the Tennessee performing arts center management
corporation, except any public documents authorized to be destroyed by the county
public records commission in accordance
 with § 10-7-404, shall at all times, during business hours, be open for personal
inspection by any citizen of Tennessee, and those in charge of such records shall not
refuse such right of inspection to any citizen, unless otherwise provided by state law.

 (b) The head of a governmental entity may promulgate rules in accordance with the
Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to maintain the
confidentiality of records concerning adoption proceedings or records required to be
kept confidential by federal statute
or regulation as a condition for the receipt of federal funds or for participation in a
federally funded program.

 (c)(1) Except as provided in § 10-7-504(g), all law enforcement personnel records shall
be open for inspection as provided in subsection (a); however, whenever the personnel
records of a law enforcement officer are inspected as provided in subsection (a), the
custodian shall make a record of such inspection and provide notice, within three (3)
days from the date of the inspection, to the officer whose personnel records have been
inspected:

 (A) That such inspection has taken place;
 (B) The name, address and telephone number of the person making such inspection;
 (C) For whom the inspection was made; and
 (D) The date of such inspection.

 (2) Any person making an inspection of such records shall provide such person's name,
address, business telephone number, home telephone number, driver license number
or other appropriate identification prior to inspecting such records.

…
(e) All contingency plans of law enforcement agencies prepared to respond to any
violent incident, bomb threat, ongoing act of violence at a school or business, ongoing
act of violence at a place of public gathering, threat involving a weapon of mass
destruction, or terrorist incident shall not be open for inspection as provided in
subsection (a).


 1957 Pub.Acts, c. 285, § 1; 1981 Pub.Acts, c. 376, § 1; 1984 Pub.Acts, c. 929, §§ 1, 3;
1991 Pub.Acts, c. 369, § 7; 1993 Pub.Acts, c. 475, § 1, eff. May 31, 1993; 1998
Pub.Acts, c. 1102, §§ 2, 4, eff. May 19, 1998; 1999 Pub.Acts, c. 514, § 1, eff. June 17,
1999; 2000 Pub.Acts, c. 714, § 1, eff. May 17, 2000.


SELECTED EXCEPTIONS:



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(f)(1) The following records or information of any state, county, municipal or other public
employee in the possession of a governmental entity in its capacity as an employer
shall be treated as confidential and
 shall not be open for inspection by members of the public: unpublished telephone
numbers; bank account information; social security number; driver license information
except where driving or operating a vehicle is part of the employee's job description or
job duties or incidental to the performance of the employee's job; and the same
information of immediate family members or household members.


 (2) Information made confidential by this subsection (f) shall be redacted wherever
possible and nothing in this subsection (f) shall be used to limit or deny access to
otherwise public information because a file, a document, or data file contains
confidential information.

 (3) Nothing in this subsection (f) shall be construed to limit access to these records by
law enforcement agencies, courts, or other governmental agencies performing official
functions.

 (4) Nothing in this subsection (f) shall be construed to close any personnel records of
public officers which are currently open under state law.

 (5) Nothing in this subsection (f) shall be construed to limit access to information made
confidential under this subsection (f), when the employee expressly authorizes the
release of such information.

(i)(1) Information that would allow a person to obtain unauthorized access to confidential
information or to government property shall be maintained as confidential. For the
purpose of this section, "government property" includes electronic information
processing systems, telecommunication systems, or other communications systems of
a governmental entity subject to this chapter. For the purpose of this
 section, "governmental entity" means the state of Tennessee and any county,
municipality, city or other political subdivision of the state of Tennessee. Such records
include:

  (A) Plans, security codes, passwords, combinations, or computer programs used to
protect electronic information and government property;
  (B) Information that would identify those areas of structural or operational vulnerability
that would permit unlawful disruption to, or interference with, the services provided by a
governmental entity; and
  (C) Information that could be used to disrupt, interfere with, or gain unauthorized
access to electronic information or government property.




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 (2) Information made confidential by this subsection (i) shall be redacted wherever
possible and nothing in this subsection (i) shall be used to limit or deny access to
otherwise public information because a
 file, document, or data file contains confidential information.


 (3) Documents concerning the cost of protecting government property or electronic
information, and the identity of vendors providing goods and services used to protect
government property or electronic information shall not be confidential.


SELECTED ANNOTATIONS:

A public official can justify refusing a Tennessee citizen access to a governmental
record only by proving by a preponderance of the evidence that the record in
controversy comes within the statutory exemption. T.C.A. § 10-7- 503. Memphis Pub.
Co. v. Holt, 1986, 710 S.W.2d 513.

Municipalities are subject to public disclosure requirements for municipal records.
Op.Atty.Gen. No. 02-065, May 17, 2002.

Under the Public Records Act, if a citizen can sufficiently identify the documents of
which he wishes to obtain copies so as to enable the custodian of the records to know
which documents are to be copied, the
citizen's personal presence before the record custodian is not required. T.C.A. § 10-7-
503. Waller v. Bryan, 1999, 16 S.W.3d 770, appeal denied.

A records custodian is not required under the Public Records Act to make an inspection
for a citizen requesting documents; rather, the citizen, to be able to obtain copies of
those documents without making a personal inspection, must sufficiently identify those
documents so that the records custodian can produce and copy those documents
without the requirement of a search by the records custodian. T.C.A. § 10-7-503. Waller
v. Bryan, 1999, 16 S.W.3d 770, appeal denied.

Under the Public Records Act, a records custodian can require a charge or fee per copy
that will cover both the costs of producing the copies and delivering the copies. T.C.A. §
10-7-503. Waller v. Bryan, 1999, 16 S.W.3d 770, appeal denied.




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