1. What is the Tennessee Public Records Act?

The Tennessee Public Records Act (“TPRA” or “the Act”) is a state law, found at Tenn. Code Ann. § 10-7-503, that requires local and state public agencies to make records available for inspection by the public.

2. Who can make a request?

• Only citizens of Tennessee have the right to inspect and receive copies of public records under the TPRA.[i]

• However, the statute does not bar governmental entities from choosing to make records accessible to individuals who are not citizens of Tennessee, such as out-of-state media outlets.[ii]

Practice Tip: Although state law says records may be made available to individuals who are not Tennessee citizens, it may be best for the request to be filed by an individual who resides in Tennessee or by a Tennessee-based organization.

3. Do you need to include an explanation of why you are filing your request?

No, there is no statutory requirement to provide a purpose for the request. But please note:

• if a person makes a request to view or copy a public record “with the intent to disrupt government operations” the records custodian charged with fulfilling the request may petition a court to enjoin the person from making records requests.[iii] “With an intent to disrupt government operations” means the requester has made 5 open records requests, likely of a frivolous nature, rather than submitting the requests as a tool to gather information. The records custodian must first notify the person in writing stating the specific conduct they believe may constitute intent to disrupt government operations.[iv] This notification shall come “after the fifth request by the person made with intent to disrupt government operations.”

• if the person continues to make frivolous requests after the notification, the custodian can then ask a court to issue an order that prohibits the person from making further requests for up to one year if the court finds by clear and convincing evidence that the 5 records requests were made with the intent to disrupt government operations.[v] In response to such a court order, a person may petition the same court for permission to make public records requests and the court may approve them if the person shows the request is not made with intent to disrupt government operations.[vi]

Practice tip: A broad, generic statement of the request’s purpose (for example: “I am making this open records request under Tennessee law”) should generally be sufficient. Some requesters may want to include additional details and context regarding the purpose of their request, especially if they are planning to use the request in connection with public advocacy. Providing a purpose for your request can also be helpful in potentially getting discounts on fees from certain agencies.

4. Which government officials or agencies can you request records from?

• The Tennessee Public Records Act allows for request records from all state, county, and municipal offices.[vii]

• A private entity that provides “public functions” and operates as “the functional equivalent of a governmental agency” can also be subject to the TPRA.[viii] In determining whether a private entity falls in this category, a court will look at the totality of the circumstances, including 1) level of government funding, 2) extent of government involvement or control, and 3) whether the entity was created by the government.

5. What types of records can you request?

• Except for records “exempt” by law (see below), “public records” include:
  
  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.[ix]

6. What types of records are exempt from being disclosed to you?

• The TPRA lists 48 categories of records that are exempt from disclosure requirements, including medical records of patients in state institutions, investigative files of the Tennessee Bureau of Investigation, records of the Military department including National Guard records, records of students in public educational institutions, Attorney General’s materials, certain voter information, and investigative reports of the Department of Corrections, among others.[x]

• The Act also exempts certain government affiliated organizations’ records from disclosure, including organizations with less than 3-full time staff members, 501(c)(3) organizations, or those that undergo an audit annually by the comptroller of the treasury.[xi]

• Additional exemptions to the TPRA may be provided by state law. For a full list of exceptions, see the Public Records Exception Database.

Practice Tip: When making an open records request, requesters should ask the agency to state whether they are withholding any records they claim are exempt, to specify which exemptions they claim apply, and to release any non-exempt portions of records that contain both exempt and non-exempt materials. Remind agencies in your request that courts have said they must “narrowly construe” any exemptions. There are more details below about how to challenge an agency that claims the requested information is exempt.

7. What is the cost? Can you get a fee waiver?

• Under the TPRA, if the requester views the records in person (without requesting copies) then the government cannot charge a fee unless otherwise required by law.[xii] If the requester wants copies of records, the governmental entity may charge a reasonable amount for the costs incurred in producing the copies and providing the estimate of the “reasonable charges,”[xiii]as set forth here in the Comptroller of the Treasury’s Schedule of Reasonable Charges: a governmental entity may charge 15 cents per black and white copy and 50 cents per color copy, unless the entity’s cost to produce a copy exceeds these threshold amounts set out in the Schedule.

• A governmental entity may also charge for the labor involved in producing copies of records. The Schedule generally allows a records custodian to charge a requester the “hourly wage of the employee(s) reasonably necessary to produce the requested information” after one hour of work has been done by the custodian in producing the requested material.[xiv]

• If copies of electronic records are requested, a governmental entity may only assess a per-page charge for paper copies that must be produced in responding to the request, such as printing the records for redaction. A governmental entity may also assess labor charges associated with the labor required to produce copies of the requested electronic records and its out-of-pocket costs for flash drives or other storage devices on which electronic copies are provided.

Practice Tip: While the TPRA itself has no provision for either requiring or waiving fees, requesters can always ask for a fee waiver by making a case for why the request will serve, support, or be valuable to the interests of the local, state, or broader public or community, including for educational purposes.

8. How and where do you make a request?

• Requests to view public records may be submitted in-person or by telephone, fax, mail, or email, if the governmental entity uses such to transact official business, or via internet portal if the governmental entity maintains an internet portal for public records requests.[xv] If requesting copies of records, a governmental entity may require the request to be in writing, or on a form in accordance with the TPRA.[xvi]

• All governmental entities subject to the TPRA are required to have a public records policy that sets forth the process for requesting access to records, the process for responding to requests, a statement of any fees charged for copies of public records, and the name and title of the entity’s Public Record Request Coordinator.[xvii] The Tennessee Comptroller of the Treasury maintains a list of state contacts for records requests here (updated June 28, 2024) and a list of local contacts for records requests here (updated June 28, 2024).

Practice Tip: It is best to confirm the preferred method of submission directly with the agency by checking their website or speaking with a staff person prior to submitting a request. Additionally, requesters should specify the desired format in which they would like to receive the documents, though it is also important to remember that the agency may not be required to provide the documents in the desired format.

9. What is the process and timeline once a request is submitted?

• If records are readily available, they should be provided promptly.[xviii] However, even if it is not practicable for the records to be made promptly available, the records custodian is required to take one of the following actions within seven business days:

• make the records available to the requester;

• deny the request in writing, providing the basis of the denial; or

• provide the requestor a written explanation of the time reasonably necessary to produce the records.

A custodian’s failure to respond to a request in one of the above-mentioned ways within seven business days, constitutes a denial of the request.[xix]

Practice Tip: Persistent follow-up is often the best way, before resorting to litigation and/or public pressure, to get an agency to respond to an open records request. Requesters should plan to regularly call, email, or visit the agency in person to inquire about the status of the request. Requesters may also want to offer or agree to clarify or narrow the scope of their request, for example by providing specific search terms, if the agency claims the request is too broad or vague. Make sure any agreement to clarify/narrow the request is put in writing, in case you need to use it in court later.

10. What if an agency denies your request?

• If an agency denies a request without justification; the requester believes the reasoning for the agency’s denial is not correct; or the agency fails to respond to the request,

• the Office of Open Records Counsel can informally mediate and assist with the resolution of the dispute,[xx]OR

• a citizen of Tennessee whose request has been denied in whole or in part can petition a court–either directly in chancery court or circuit court in Davidson County; in the county in which the sought records are situated, if not Davidson County; in the county of the petitioner’s residence; or in any other court of the county having equity jurisdiction–for access to any such record and to obtain judicial review of the agency’s actions taken to deny the access to the public records.[xxi]

  • If the court finds that the governmental entity or its agent refused to disclose a record, knowing it was public and willfully refused to disclose it, the court, in its discretion, may assess all reasonable costs involved in obtaining the record, including reasonable attorneys’ fees, against the governmental entity.[xxii]