The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
ASSIGNED ON BRIEFS JUNE 1, 2005
BYRON C. WELLS v. A. C. WHARTON, JR., ET AL.
Direct Appeal from the Chancery Court for Shelby County
No. CH04-1826-3 D. J. Alissandratos, Chancellor
No. W2005-00695-COA-R3-CV - Filed December 7, 2005
In this appeal, we are asked to determine multiple issues including whether the chancery court erred
when it granted the defendants’ motion to dismiss for failure to state a claim upon which relief may
be granted. The plaintiff contends that there were numerous claims made in his complaint sufficient
to survive defendants’ motion to dismiss. The plaintiff, acting pro se, filed an appeal to this Court.
We affirm in part and reverse in part and remand.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed in Part,
Reversed0 in Part and Remanded
ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.
Byron C. Wells, Memphis, TN, pro se
Brian L. Kuhn, Shelby County Attorney; Craig E. Willis, Assistant County Attorney, Memphis, TN,
for Appellees
OPINION
I. FACTS & PROCEDURAL HISTORY
Byron Wells (“Mr. Wells” or “Appellant”) is a resident of Shelby County who previously
accessed public documents via the Shelby County Portal website. Using a computer program that
he specially created, Mr. Wells would download public documents in bulk format. After access
through the website overloaded its computer system, the Shelby County Government (“Shelby
County”) closed the website for several weeks. Shelby County eventually reopened access to the
website but placed limitations on the amount of data that could be downloaded and the length of
connection time. As a result, Mr. Wells could no longer download the documents he desires in bulk
format via his specially created program. Mr. Wells attempted to go to the Shelby County offices
where the documents are kept to utilize that office’s computers to download public records in bulk
format. Mr. Wells could not download public records in the same manner, however, because (1) the
computers provided for public use to access public records by the office cannot handle such request
or (2) the office does not provide a computer for public use to access public records. At all times
pertinent to this litigation, Mr. Wells could submit a written request to each office he desired public
records from and receive those records in a paper copy.
On September 10, 2004, Mr. Wells filed suit against A.C. Wharton Jr., William R. Key,
Chris A. Turner, Joseph A. Jackson, Shelby County, James Huntziker, and Kevin A. Gallagher
(collectively “Defendants” or “Appellees”). Thereafter, Mr. Wells amended his complaint to allege
that the limited access provided by Shelby County via the Internet violated the Tennessee Public
Records Act; that the Shelby County Mayor’s Office denied him copies of payment records between
the Memphis Daily News and Shelby County; that officials denied him copies of public records in
a format requested by Mr. Wells; and that Defendants’ requirement that Mr. Wells must first present
a written request before being allowed public access constituted a denial of access to public records.1
On October 6, 2004, the chancery court conducted a hearing on Defendants’ motion to
dismiss and motion to strike. At that time, the chancery court continued the hearing to allow both
parties to discuss with each other the feasibility of creating a new system that would allow Mr. Wells
the access he desired.
After the parties could not reach an amicable compromise, the chancery court conducted a
hearing on Defendants’ motion to dismiss, motion to strike, and motion for a protective order and/or
to stay discovery as well as Mr. Wells’s motion to disqualify Defendants’ attorney and motion to
strike exhibit obtained by misinformation. On March 2, 2005, the chancery court denied Appellant’s
motions; granted Defendants’ motion to strike and motion to dismiss; and ruled that Defendants’
motion for protective order and/or to stay discovery was moot. On March 3, 2005, Mr. Wells filed
a motion for relief from judgment and/or motion to reconsider. On March 9, 2005, Mr. Wells filed
a memorandum in support of his motion for relief from judgment and/or motion to reconsider. After
a hearing on the motion, the chancery court denied Mr. Wells’s motion for relief from judgment
and/or motion to reconsider.
II. ISSUES PRESENTED
Appellant, acting pro se, filed a timely notice of appeal to this Court and presented numerous
issues for review, to include the following:
1. Whether allegations of actual fraud, misrepresentation and other misconduct which may be
criminal in nature state a claim upon which relief may be granted;
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In his original complaint, Mr. W ells asserted federal civil rights violations under section 1983 of title 42 of
the United States Code. Mr. W ells, however, did not include these allegations in his amended complaint.
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2. Whether an allegation that Shelby County operates its computer program contrary to
Attorney General’s opinions state a claim upon which relief may be granted;
3. Whether the chancery court should have disqualified Appellees’ attorney from representing
Appellees when there is a conflict of interest among Appellees;
4. Whether the chancery court should have disqualified Appellees’ attorney from representing
all defendants when the attorney writes an opinion stating to his clients that their actions are
illegal and then defend them claiming that their actions are not illegal;
5. Whether the chancery court should have disqualified Appellee’s attorney because Appellees
may have committed a felonious act;
6. Whether Appellees’ denial of public records because Appellant filed a lawsuit against
Appellees state a claim upon which relief may be granted;
7. Whether Appellees may require any request for public records to be in writing.
8. Whether Appellees’ denial of providing a copy of public records in a particular manner state
a claim upon which relief may be granted;
9. Whether a claim that Appellees’ preferentially treated the Memphis Daily News state a claim
upon which relief may be granted;
10. Whether a county official must maintain a computer for the public to access public records;
11. Whether the chancery court can require Appellant provide computer programming for total
access to all records for the entire public;
12. Whether the chancery court can demand Appellant to pay for all costs of reviewing county
operations to make all records accessible to all members of the public;
13. Whether newly discovered evidence of a substantial change in the operations of Appellees
states a claim upon which relief may be granted;
14. Whether the chancery court must provide judicial review of Appellant’s claims before
granting a motion to dismiss;
15. Whether the chancery court may refuse to allow Appellant to correct the record to state that
he would be required to make payments for new computer programs for access to public
records which are not available;
16. Whether the chancery court converted Appellees’ motion to dismiss to a motion for summary
judgment when it considered the County’s claims that remote public access to its records
would damage the records and that the County has adopted reasonable rules;
17. Whether Appellees refusal to grant a request for access to public records unless Appellant
made a written request states a claim upon which relief may be granted; and
18. Whether the chancery court erred when it concluded that it did not understand the complaint
and that it would let the Court of Appeals tell him what to do.
For the following reasons, we affirm in part and reverse in part and remand the decision of
the chancery court.
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III. DISCUSSION
A. Issues Without Merit
Appellant has presented numerous issues on appeal. The majority of these issues, however,
are meritless. We address each issue in turn.
First, we address Appellant’s assertion that his allegations of fraud, misrepresentation, and
other conduct which may be criminal in nature orally presented at trial state a claim upon which
relief may be granted. At trial, Appellant made several oral allegations that Appellees have
committed a fraud upon the chancery court and made misrepresentations to the chancery court.
These allegations may be a violation of the Tennessee Rules of Professional Conduct if proven true.
See Tenn. Sup. Ct. R. 8, RPC 3.3 (2003). They do not, however, state a claim upon which relief may
be granted. Appellant has not alleged that Appellees committed a fraud upon Appellant or made a
misrepresentation to Appellant.
Even assuming that Appellees have committed a fraud or made a misrepresentation to
Appellant, Appellant has not alleged fraud or misrepresentation within his complaint. When
considering whether to grant a motion to dismiss for failure to state a claim upon which relief may
be granted, a court may not hear “matters outside the pleadings.” Trau Med of America, Inc. v.
Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002) (citing Bell ex rel. Snyder v. Icard, Merrill,
Cullis, Timm, Furen & Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999)). Thus, this issue is
without merit.
Second, we address Appellant’s claims that the chancery court should have disqualified
Appellees’ attorney for any one of three reasons. Appellant claims there is a conflict of interest
between the parties and that an attorney may not represent all parties dually represent Appellees.
Appellant also claims that the Appellee allowed a conspiracy by Appellees to perpetrate a fraud upon
the chancery court and to maintain that fraud upon the chancery court.
Appellant, as the movant, had the burden to prove that the chancery court should disqualify
the County Attorney from representing Appellees. During the hearing on this motion, Appellant
presented no evidence other than his unfounded allegations as proof. Thus, the chancery court was
not in error when it denied Appellant’s motion to disqualify.
Appellant has also asserted that the chancery court should have disqualified Appellees’
attorney because the attorney’s written opinion was in opposite of Appellees stance at trial. Appellee
did not raise this issue at trial. Thus, Appellant has waived this issue. Barnhill v. Barnhill, 826
S.W.2d 443, 458 (Tenn. Ct. App. 1991) (citing Campbell County Bd. of Educ. v.
Brownlee-Kesterson, Inc., 677 S.W.2d 457 (Tenn. Ct. App. 1984)) (holding that a party waives an
issue when it raises it for the first time on appeal).
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Third, we address Appellant’s contentions that the chancery court cannot demand Appellant
to pay for all costs of reviewing county operations to make all records accessible to all members of
the public and that the chancery court cannot require Appellant provide computer programming for
total access to all records for the entire public.
At trial, the chancery court did not issue a final order requiring Appellant to pay for any costs
related to these issues, nor did it issue a final order adjudging whether a county official must
maintain a computer for public access. This Court “will not decide theoretical issues based on
contingencies that may or may not arise.” City of Memphis v. Shelby County Election Comm’n,
146 S.W.3d 531, 539 (Tenn. 2004). To do so would “violate the established rule that appellate
courts will not render advisory opinions.” Id.
Fourth, we address Appellant’s claims that Appellees’ preferentially treated the Memphis
Daily News state a claim upon which relief may be granted; that Shelby County operates its
computer program contrary to Attorney General’s opinions state a claim upon which relief may be
granted; that newly discovered evidence of a substantial change in the operations of Appellees states
a claim upon which relief may be granted; and that the chancery court may refuse to allow Appellant
to correct the record to state that he would be required to make payments for new computer programs
for access to public records which are not available.
In Appellees’ motion to strike, Appellees petitioned the chancery court to strike out all
allegations of Appellant’s complaint that did not relate to Appellant’s right of personal inspection
of public records under section 10-7-505 of the Tennessee Code. Each of these issues does not
pertain to Appellant’s right of personal inspection. Appellant has not challenged the chancery
court’s grant of Appellees motion to strike on appeal. Thus, these issues are pretermitted.
Fifth, we address Appellant’s claim that a county official’s failure to maintain a computer
for the public to access public records states a claim upon which relief may be granted. Section 10-
7-123(a) of the Tennessee Code provides that a “county official may provide computer access . . .
for inquiry only to information contained in the records of that office which are maintained on
computer storage media in that office, during and after regular business hours.” Tenn. Code Ann.
§ 10-7-123(a)(1) (emphasis added). Pursuant to this statute, a county official is not required to
maintain a computer for the public to access public records. Thus, this issue is without merit.
Next, we address Appellant’s claim that the chancery court converted Appellees’ motion to
dismiss to a motion for summary judgment when it considered the County’s claims that remote
public access to its records would damage the records and that the County has adopted reasonable
rules.
If a trial judge receives matters outside the pleadings on a motion to dismiss for failure to
state a claim upon which relief may be granted, “the motion shall be treated as a motion for summary
judgment and disposed of as provided in [Tennessee] Rule [of Civil Procedure] 56.” Tenn. R. Civ.
P. 12.02; see also Hixson v. Stickley, 493 S.W.2d 471, 472-73 (Tenn. 1973).
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Although Appellant claims that the chancery court heard matters outside the pleadings, the
record does not reflect such an assertion. During its hearing on Appellees’ motion to dismiss, the
chancery court directed Appellees to “keep in mind that on a Motion to dismiss you have to stay
within the confines of the four corners of the Complaint.” Thus, we find this issue meritless.
Finally, we address Appellant’s claim that the chancery court erred when it concluded that
it did not understand the complaint and that it would let the Court of Appeals tell him what to do.
First, this Court notes that Appellant has misstated what the chancery court stated at its hearing on
Appellant’s motion for relief from judgment and/or motion to reconsider. The chancery court
specifically stated that “[p]erhaps the members of the Court of Appeals have a greater understanding
of this than I do when they read your Complaint, but when I read your Complaint, I do not see a
cause of action for which the Court can grant relief.” Further, this is not an appealable issue.
B. Motion to Dismiss
Appellant asserts that the chancery court erred when it granted Appellees’ motion to dismiss
for failure to state a claim upon which relief may be granted. Because Appellant has failed to appeal
the chancery court’s grant of Appellees’ motion to strike, this Court is limited to determining
whether Appellees’ denial of inspection of payment records because Appellant is a party to a lawsuit
against them; whether Appellees’ denial of Appellant’s requests to have certain public documents
copied in a particular format; and/or whether Appellees’ requirement that a citizen must first make
a written request before a custodian of records grants him or her access to public records state a
claim that may withstand a motion brought pursuant to Rule 12.02(6) of the Tennessee Rules of Civil
Procedure.
When reviewing a 12.02(6) motion to dismiss, this Court will not consider any matter outside
the pleadings. Trau Med of America, Inc., 71 S.W.3d at 696 (citing Bell ex rel. Snyder v. Icard,
Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999)). This Court
shall liberally construe the pleadings and “presume all factual allegations to be true and giv[e] the
plaintiff the benefit of all reasonable inferences.” Id. (citing Pursell v. First Am. Nat’l Bank, 937
S.W.2d 838, 840 (Tenn. 1996)). A trial court’s granting of a motion to dismiss must be upheld if
“it appears that the plaintiff can prove no set of facts in support of his or her claim that would
warrant relief.” Id. (citing Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999); Fuerst v. Methodist
Hosp. S., 566 S.W.2d 847, 848 (Tenn. 1978)). We review any conclusions of law by the trial court
under a de novo standard with no presumption of correctness. Union Carbide Co. v. Huddleston,
854 S.W.2d 87, 91 (Tenn. 1993).
In counts four and five of his complaint, Appellant claims that he was denied copies of any
payment records between Shelby County and the Memphis Daily News by Appellees. Appellant
asserts that the Shelby County finance department denied his request sending him to the Shelby
County mayor’s office for the public records he sought and that the Shelby County mayor’s office
denied him access to public records because he was a party to a lawsuit.
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Section 10-7-503 of the Tennessee Code requires that a county official may not refuse
inspection of any public record to any citizen of Tennessee “unless otherwise provided by state law.”
Tenn. Code Ann. § 10-7-503(a) (2005). If a citizen has been denied access to public records by a
government official, that citizen “may petition for access to any such record and to obtain judicial
review of the actions taken to deny the access.” Tenn. Code Ann. § 10-7-505(a) (2005). This Court
must “broadly construe[] [this section of the Tennessee Code] so as to give the fullest possible public
access to public records.” Tenn. Code Ann. § 10-7-505(d) (2005).
Our legislature has defined the term public document to 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 agency.” Tenn. Code Ann. § 10-7-301(6) (2005) (emphasis added).
Appellant, a resident of Shelby County, has requested payment records from transactions
conducted between the Memphis Daily News and Shelby County. Clearly, these records fall within
the definition of a public record. If we view his allegations as true, Appellant, a citizen of
Tennessee, has been denied access to public records. Thus, Appellant has stated a claim upon which
relief may be granted.
Additionally, in counts one through four of his complaint, Appellant has asserted that he has
been denied copies of various public records in electronic format, basing his claim on our Supreme
Court’s decision in Tennessean v. Electric Power Board of Nashville.
Appellant interprets our Supreme Court’s decision in Tennessean v. Electric Power Board
of Nashville, 979 S.W.2d 297 (Tenn. 1998), as to require a government official to provide public
records in a computerized format. This interpretation, however, is in error. In Tennessean v.
Electric Power Board of Nashville, the Tennessean Newspaper requested the names, addresses, and
phone numbers of Nashville Electric Service’s customers. Id. at 299. Nashville Electric Service
denied this request asserting that it did not have a record that contained all of the requested
information and that it would have to create a new record in order to meet this request. Id. The
Supreme Court found that this denial was one of format and access and required the Nashville
Electric Service to create a new record that contained all the information. Id. at 304. The Supreme
Court, however, defined format of the record as the content included within the record not the
manner in which Nashville Electric Service presented the information to the Tennessean. Id.
In this case, Appellant has not alleged that Appellees have denied him access to public
records because Appellees would have to create a new record. Thus, Tennessean v. Nashville
Electric Service is inapplicable in this case.
Section 10-7-505 of the Tennessee Code grants citizens of Tennessee the right to seek
judicial review when an official denies his or her request to access public records. Tenn. Code Ann.
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§ 10-7-505(a). Appellant has not alleged that he has been denied these records in any form.
Appellant argues that Appellees have denied him copies of public records in electronic form.
While Tennessee courts have not addressed whether a citizen requesting public records may
dictate the manner he or she receives it, several other jurisdictions have addressed this issue. For
example, in Farrell v. City of Detroit, 530 N.W.2d 105 (Mich. Ct. App. 1995), the Michigan Court
of Appeals found that custodians of public records must provide public records in the format that the
citizen requests. Farrell, 530 N.W.2d 105. In Farrell, a newspaper reporter requested a copy of a
computer tape that contained the “listing of all taxpayers who pay City of Detroit property taxes.”
Id. at 107. The City of Detroit responded to Mr. Farrell’s request informing him that he could
procure a printed copy of the public records he requested during normal business hours. Id. The
district court granted summary judgment for the City of Detroit finding “that providing hard copies
of the requested information was sufficient to comply with the FOIA.” Id.
On appeal, Mr. Farrell argued that the trial court erred because it improperly emphasized “the
information sought rather than the records requested.” Id. at 107-08. Basing their decision on
applicable Michigan law, the Court of Appeals of Michigan held that custodians of records must
“provide the ‘public record’ . . . [citizens] request, not just the information contained therein.” Id.
at 109. The Court also found that the magnetic tape requested was a public record and that the City
of Detroit was required to give a copy of the magnetic tape, not just a printout of the information in
the tape. Id.
Likewise, in American Federation of State, County & Municipal Employees, AFL-CIO
v. County of Cook, 555 N.E.2d 361 (Ill. 1990), the Illinois Supreme Court found that a custodian
of records must provide the public record and not just the information contained within the public
record. Am. Fed’n of State, County & Mun. Employees, AFL-CIO, 555 N.E.2d 361. In that case,
representatives of the American Federation of State, County & Municipal Employees, AFL-CIO
(“AFSCME”) requested certain information. Id. at 362. Mr. Robert Lawson, another representative
of the AFSCME, requested the same information on computer tape or diskette. Id. Mr. Thomas P.
Beck, Cook County comptroller, denied Mr. Lawsons request stating that he had already provided
the information to the AFSCME and that, in any event, he did not have to give a copy of the
computer tape to Mr. Lawson. Id. After reviewing Illinois law, the Illinois Supreme Court found
that computer tapes are public records and are subject to inspection and copying. Id. at 364-65.
Other jurisdictions have found that a custodian of records may dictate the manner in which
public records are disseminated to a member of the public. For example, the United States District
Court for the District of Columbia found that the U.S. Freedom of Information Act did not allow a
citizen to specify the format in which he or she receives a public record. In Dismukes v. Department
of the Interior, 603 F. Supp. 760 (D. D.C. 1984), the U.S. Department of the Interior (the “DOI”)
denied Mr. Philip Dismukes's request for “a copy of a computer tape listing by name and address the
participants in the six 1982 Bureau of Land Management Simultaneous Oil and Gas Leasing
bimonthly lotteries.” Dismukes, 603 F. Supp. at 760-61. The DOI offered the information to Mr.
Dismukes in microfiche form, advising Mr. Dismukes that this form was how the DOI routinely gave
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this information to the public. Id. at 761. The District Court focused on the informational content
of the record rather than the record itself and found that “[t]he agency need only provide responsive,
nonexempt information in a reasonably accessible form, and its offer to plaintiff satisfies that
obligation.” Id. at 763.
Similarly, in Tax Data Corporation v. Hunt, 826 P.2d 353 (Colo. Ct. App. 1991), the Court
of Appeals of Colorado, Division Two, found that custodians of public records may dictate the
manner of access to public records. Tax Data Corp., 826 P.2d 353. In Tax Data Corporation, a
corporation requested tax information on real property from the Treasury Department of the City and
County of Denver (the “Treasury Dept.”). Id. at 354. Initially, employees of the Treasury Dept.
permitted representatives of the corporation to access the Treasury Dept.’s computers, which were
not designated for public use. Id. After discovering the corporation’s activities, the treasurer of the
City and County of Denver (the “Treasurer”) informed the corporation that it could no longer use
the Treasury Dept.’s computers to access the records, but if it would “leave a list of the properties
of interest,” the Treasury Dept. would send the corporation a computer printout containing the
requested information. Id. Afterwards, the City of Denver Department of Revenue (the “Dept. of
Revenue”) “promulgated regulations governing public access to records open to inspection or
copying under state and local laws.” Id. at 355. The Court of Appeals declared that the “basic
purpose of the Open Records Act is to insure the public’s access to information which is a matter
of public record, in a form which is reasonably accessible and which does not alter the contents of
the information.” Id. at 357. Reviewing the Dept. of Revenue’s regulations in light of this purpose,
it found that the issue presented was “one relating to the manner of access to public records which
are electronically stored.” Id. Finding that “the regulations grant[ed] reasonable access to
electronically stored information,” the Court of Appeals held that “the regulations d[id] not deny
access to electronically stored public records.” Id.
While these cases are not binding upon this Court, we find that these cases illustrate that the
issue in the present case depends on whether the purpose of the Tennessee Public Records Act is one
of access to the information contained within the public records or one of access to the public records
in their normally kept form. In Tennessee, the purpose of the Public Records Act is to allow
maximum access to the information contained within public records. See Tennessean v. Nashville
Elec. Serv., 979 S.W.2d 297 (Tenn. 1998). Thus, the issue presented here is not one of denial but
one of manner of access.
In light of the purpose of the Tennessee Public Records Act, we conclude that the Tennessee
Public Records Act does not require a custodian of records to provide public records in the manner
a citizen requests. Section 10-7-506 of the Tennessee Code allows for citizens “to take extracts or
make copies of public records . . . and to make photographs or photostats of the same” and allows
the custodian of those records “to adopt and enforce reasonable rules governing the making of such
extracts, copies, photographs or photostats.” Tenn. Code Ann. § 10-7-506(a). This statute, however,
does not mention the manner in which the custodian of the record may present the record to the
citizen. See Id. § 10-7-506 (2005). In addition, section 10-7-121 of the Tennessee Code sets forth
the requirements a custodian of records must meet if he or she decides to maintain the public records
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by computer. Id. § 10-7-121. Under this section, in order for a custodian to maintain a public record
on computer, the custodian must be able to provide “a paper copy of the information when needed
or when requested by a member of the public.” Id. § 10-7-121(a)(1)(D). Further, the section
provides that “[n]othing in this section shall be construed to require the government official to sell
or provide the media upon which such information is stored or maintained.” Id. § 10-7-121(a)(2).
Allowing a custodian of records to choose the manner in which he or she presents public
records to citizens is not unreasonable so long as that manner does not distort the record or inhibit
access to that record. Further, the language of section 10-7-121 of the Tennessee Code appears to
prohibit providing records in electronic form to the public. While this section does not specifically
state that a computer printout is the only manner a citizen may view a public record that an official
maintains on computer, it does state that the official must be able to provide a paper copy when
requested by a member of the public and that maintaining a public record on a computer does not
grant a citizen the right to inspect the media upon which the custodian stores public records.
Accordingly, we find that Appellees’ refusal to provide public records to Appellant in electronic
form is not a claim upon which relief may be granted.
Finally, in count five of his complaint, Appellant asserted that Appellees initially required
any request for public records be in writing before Appellees would grant Appellant access to certain
public records states a claim upon which relief may be granted.
Section 10-7-503 of the Tennessee Code states
[A]ll 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.
Tenn. Code Ann. § 10-7-503(a).
It is clear from the language of this statute that an official may refuse inspection of public
records by a citizen only when state law provides for such non-disclosure. Nowhere in the
Tennessee Public Records Act allows for an official to deny access to public records if a citizen does
not first request access in writing. “When the words of a statute are plain, clear, and unambiguous,
we merely look to the statute’s plain language to interpret its meaning.” Planned Parenthood of
Middle Tenn. v. Sundquist, 38 S.W.3d 1, 24 (Tenn. 2000) (citing Schering-Plough v. State Bd. of
Equal., 999 S.W.2d 773, 775-76 (Tenn. 1999)). Therefore, Appellees’ initial denial of Appellant’s
request for access to public records because Appellant did not first request access in writing states
a claim upon which relief may be granted.
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Accordingly, we affirm in part and reverse in part the chancery court’s grant of Appellees’
motion to dismiss for failure to state a claim upon which relief may be granted.
C. Evidentiary Hearing
Finally, Appellant asserts that the chancery court erred when it did not hold an evidentiary hearing
on his claims before granting a motion to dismiss.
Section 10-7-505 of the Tennessee Code states:
(a) Any citizen of Tennessee who shall request the right of personal
inspection of any state, county or municipal record as provided in §
10-7-503, and whose request has been in whole or in part denied by
the official and/or designee of the official or through any act or
regulation of any official or designee of any official, shall be entitled
to petition for access to any such record and to obtain judicial review
of the actions taken to deny the access.
(b) Such petition shall be filed in the chancery court for the county
in which the county or municipal records sought are situated, or in
any other court of that county having equity jurisdiction. In the case
of records in the custody and control of any state department, agency
or instrumentality, such petition shall be filed in the chancery court
of Davidson County; or in the chancery court for the county in which
the state records are situated if different from Davidson County, or in
any other court of that county having equity jurisdiction; or in the
chancery court in the county of the petitioner's residence, or in any
other court of that county having equity jurisdiction. Upon filing of
the petition, the court shall, upon request of the petitioning party,
issue an order requiring the defendant or respondent party or parties
to immediately appear and show cause, if they have any, why the
petition should not be granted. A formal written response to the
petition shall not be required, and the generally applicable periods of
filing such response shall not apply in the interest of expeditious
hearings. The court may direct that the records being sought be
submitted under seal for review by the court and no other party. The
decision of the court on the petition shall constitute a final judgment
on the merits.
(c) The burden of proof for justification of nondisclosure of records
sought shall be upon the official and/or designee of the official of
those records and the justification for the nondisclosure must be
shown by a preponderance of the evidence.
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(d) The court, in ruling upon the petition of any party proceeding
hereunder, shall render written findings of fact and conclusions of law
and shall be empowered to exercise full injunctive remedies and relief
to secure the purposes and intentions of this section, and this section
shall be broadly construed so as to give the fullest possible public
access to public records.
(e) Upon a judgment in favor of the petitioner, the court shall order
that the records be made available to the petitioner unless:
(1) There is a timely filing of a notice of appeal; and
(2) The court certifies that there exists a substantial legal issue with
respect to the disclosure of the documents which ought to be resolved
by the appellate courts.
(f) Any public official required to produce records pursuant to this
part shall not be found criminally or civilly liable for the release of
such records, nor shall a public official required to release records in
such public official's custody or under such public official's control
be found responsible for any damages caused, directly or indirectly,
by the release of such information.
(g) If the court finds that the governmental entity, or agent thereof,
refusing to disclose a record, knew that such record was public and
willfully refused to disclose it, such court may, in its discretion,
assess all reasonable costs involved in obtaining the record, including
reasonable attorneys' fees, against the nondisclosing governmental
entity.
As stated earlier, Appellant set forth in his complaint that he has been denied payment records
between the Memphis Daily News and Shelby County and that the Shelby County mayor’s office
initially denied his request for access to these public records because he did not request in writing.
“It is clear from the statute that there must be an evidentiary hearing if there are disputes concerning
the nondisclosure of the records.” Jackson v. Hackett, No.37, 1990 Tenn. App. LEXIS 684, at *6
(Tenn. Ct. App. October 3, 1990). Thus, it was error for the chancery court not to require Shelby
County to appear and show cause as to these claims.
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IV. CONCLUSION
For the reasons set forth herein, we affirm in part and reverse in part the chancery court’s
decision. We remand for further proceedings consistent with this opinion. Costs of this appeal are
taxed equally to Appellant, Mr. Byron Wells, and his surety, and to Appellees, for which execution
may issue if necessary,.
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ALAN E. HIGHERS, JUDGE
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