The Tennessean v. Electric Power Board of Nashville

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

(HEARD AT SHELBYVILLE)

FILED

FOR PUBLICATION

November 16, 1998

THE TENNESSEAN, a division of ) Filed: November 16, 1998

Gannett Satellite Information ) Cecil W. Crowson

Network, Inc., and FRANK ) Appellate Court Clerk

SUTHERLAND, ) DAVIDSON CHANCERY

)

Appellants, )

)

Vs. )

) HON. ELLEN HOBBS LYLE,

ELECTRIC POWER BOARD OF ) CHANCELLOR

NASHVILLE, )

)

Appellee. ) NO. 01-S-01-9709-CH-00181

For Appellants: For Appellee:

Alfred H. Knight Larry Stewart

WILLIS & KNIGHT Charles W. Cook

Nashville, Tennessee Nancy A. Vincent

STOKES & BARTHOLOMEW, P.A.

Nashville, Tennessee

Eugene Ward

N.E.S. General Counsel

Nashville, Tennessee

For Amicus Curiae, Tennessee For Amicus Curiae, Tennessee

Press Association: Municipal Electric Power

Richard L. Hollow Association:

Nathan D. Rowell Frank S. King, Jr.

WATSON, HOLLOW & REEVES KING & BALLOW

Knoxville, Tennessee Nashville, Tennessee

O P I N I O N

COURT OF APPEALS REVERSED;

REMANDED TO TRIAL COURT ANDERSON, C.J.

We granted this appeal to address two questions of first impression under the

Tennessee Public Records Act: first, whether a government agency should be required

to disclose its customer names, addresses, and telephone numbers as a public record,

even though it did not maintain the information in its computer in the exact format in

which it had been requested; and second, whether the same government agency may

require payment of costs incurred in disclosing the information and the cost of notifying

its customers that the information had been requested.1

The trial court found that the government agency in this case, the Electric Power

Board of Nashville and the Nashville Electric Service, was required to disclose the

names, addresses, and telephone numbers of its customers as requested by The

Tennessean, a Nashville newspaper, but that the agency could require payment of

costs incurred in disclosing the information and the cost of notifying its customers that

the information had been requested. The Court of Appeals reversed, concluding that

the information requested by The Tennessean was not a “record” kept by the agency.

The court, however, upheld the disclosure and notification costs charged by the agency.

We agree with the trial court’s finding that the information sought by The

Tennessean is a public record under the Public Records Act and conclude it is

consistent with the legislative mandate of providing “the fullest possible public access to

public records.” Tenn. Code Ann. § 10-7-505(d) (1992). We further conclude that the

Public Records Act authorized the agency to require payment for the costs of disclosing

the records but not for the costs of notifying customers that a request had been made

for the information. Tenn. Code Ann. § 10-7-506(a) (1992 & Supp. 1998). Accordingly,

we reverse the Court of Appeals’ judgment and remand the case to the trial court for

further proceedings.

BACKGROUND

1

Ora l argu me nt wa s hea rd in th is cas e on A pril 2, 1 998 , in Sh elbyville , Bed ford Cou nty,

Tenn essee , as part of this Cou rt’s S.C.A.L .E.S. (Supreme Court Advancing Lega l Education for Students)

project.

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The Tennessean and its editor, Frank Sutherland, sought to obtain from the

Electric Power Board of Nashville and the Nashville Electric Service (hereinafter “NES”)

a list of names, addresses, and telephone numbers of its customers. The request was

refused on the ground that NES did not possess a record containing the specific

information sought.

Victor Hatridge, Vice President and Chief Information Officer for NES, stated in

an affidavit that NES did not have a “list or data compilation” that contained only the

information sought by The Tennessean, nor had it ever needed such a list to conduct

business. He indicated that the closest compilation NES had found was a microfiche

report that was generated monthly and contained the names and addresses of service

meter locations. He also stated that NES had solicited telephone numbers from its

customers to install an Interactive Voice Response system; approximately ninety

percent (90%) of the numbers had been accumulated, but no distinction had been

made between published and unpublished numbers. According to the affidavit of

Wendall Wheeler, an employee with the contractor of NES’s information systems, the

cost of writing a computer program to add the telephone numbers to the list of names

and addresses was $4,500.

Hatridge stated that NES also had a Master Tape that contained not only the

information requested by The Tennessean but also various additional information such

as service numbers, customer numbers, locations, critical health indicators, and

distribution numbers. Hatridge said that the cost of computer time to produce a copy of

the Master Tape was $100, and the cost to modify the Master Tape to fit the format

requested by The Tennessean was approximately $1,800.

The record reflects that NES gave The Tennessean an estimate of the costs

incurred in disclosing the information as well as costs totaling $86,400 for notifying its

292,000 customers that a request for information had been made. The customer

notification policy, which was adopted by NES on December 21, 1994, arose out of

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concern for the privacy and physical safety of its customers and requires individual

notice to be sent by first class mail to a customer whose account has been accessed by

a third party.2

TRIAL COURT’S FINDINGS AND CONCLUSIONS

After considering the evidence and arguments of the parties, the trial court made

findings of fact as follows:

# That NES did not possess a single document containing the names,

addresses, and telephone numbers of its customers as requested by The

Tennessean;

# That NES did possess a microfiche report containing customer

names and addresses of service locations;

# That the cost of writing a computer program to add telephone

numbers to the list of customers names and addresses was

approximately $4,500;

# That NES did possess a separate Master Tape with all the

information sought as well as information that was not sought;

# That the cost of copying the Master Tape was $100;

# That the cost of writing a program to extract the requested

information from the Master Tape was $1,800;3 and

# That the cost of notifying NES’s customers by first class mail that

information had been requested was $86,400.

The trial court decided that NES was required to disclose the requested

information, stating:

In that “Public Record” is defined to encompass “other material,

regardless of physical form or characteristics made or received . . . in

connection with the transaction of official business,” combined with the

statutory requirement that the Court must construe “access” to give the

fullest possible public access to public records, and that the burden of

proving justification for denial of access is on the official denying access,

the Court finds that NES has failed to carry its burden and that the

information requested in this case is a public record.

2

To support its argument that notification protected the physical safety of its customers, NES

relied upon an October 1994 newspaper article in The Tennessean regarding a lawsuit filed against NES

for providing the Nashville address of a criminal informant who was murdered prior to a trial in which he

was to te stify.

3

In what ap pears to be a typog raphica l error, the trial co urt’s orde r states $ 18,000 . The aff idavits

and other evidence in the record clearly indicate an amount of $1,800.

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The trial court also upheld the costs charged by NES for producing the requested

information, as well as the cost of notifying its customers, relying on a statutory

provision allowing the lawful custodian of records “to adopt and enforce reasonable

rules governing the making of such extracts, copies, photographs or photostats” of such

records. Tenn. Code Ann. § 10-7-506(a). The court then concluded that NES’s

production and notification costs totaling $91,619 were appropriate.4

COURT OF APPEALS’ RULING

Both sides appealed the trial court’s ruling. NES argued that the trial court erred

in requiring it to produce as a public record information that was not contained in its

computer in the exact format requested by The Tennessean. The newspaper

conceded that it should pay the cost of producing the records but objected to the

payment of notification costs.

In reversing the trial court’s judgment, the Court of Appeals concluded that a

“natural and ordinary” meaning of “record” meant “information gathered or organized on

a particular subject and in a particular format.” Since it was undisputed that NES did

not possess a list containing only a list of its customer names, addresses, and

telephone numbers in the particular format requested by The Tennessean, the

appellate court held that NES was not required to create a “new” record to satisfy the

request. The appellate court also upheld the right of NES to demand payment under its

customer notification policy.

We granted this appeal to review these questions of first impression under the

Tennessee Public Records Act.

ANALYSIS

4

The costs found by the trial court included: $2,677 for producing a list of customer names and

addresses; $714 for programming to add telephone numbers to the list; $1,828 in computer time; $82,200

postage for notification of 292,000 customers by first class mail; and $4,200 in labor costs for preparing

and mailing the notification.

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Public Records Act

We first review the provisions of the Tennessee Public Records Act and this

Court’s previous interpretations of the Act. Like every state and the federal

government, Tennessee has legislation allowing citizens to inspect certain public

records.5 The Tennessee Public Records Act provides, in part:

(a) All state, county and municipal records and all records maintained by

the Tennessee performing arts center management corporation . . . 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 (1992 & Supp. 1998).6

The Act defines “public record” as “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) (1992).

Those records which are to be kept confidential and not disclosed are specifically set

out in the Act. Tenn. Code Ann. § 10-7-504 (1992 & Supp. 1998).

If denied access to public records under this Act, either in whole or in part, a

citizen is “entitled to 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). The burden

of proof for justifying nondisclosure or demonstrating that a record is statutorily exempt

from disclosure rests with the agency that has denied access. Tenn. Code Ann. § 10-7-

505(c). The legislature has expressly stated that in reviewing a petition for access, the

5

Such legislation may be referred to by one of several similar terms: Public Records Act; Open

Reco rds Ac t; Data Pra ctice Ac t; and Fre edom of Inform ation Law s. See, e.g., 5 U.S.C. § 552 (1989 &

Supp. 1997) (federal governm ent Freedom of Information Act).

6

It is undispu ted that N ES qua lifies as a “co unty or m unicipality.”

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courts must construe the Act “so as to give the fullest possible public access to public

records.” Tenn. Code Ann. § 10-7-505(d).

Our recent cases reflect the broad construction of “record” under the Act and a

consistent adherence to the policy of full public access. See, e.g., Memphis Publ’g Co.

v. City of Memphis, 871 S.W.2d 681 (Tenn. 1994) (depositions taken in bankruptcy

proceeding in which the city and county were parties were public records); Griffin v.

City of Knoxville, 821 S.W.2d 921 (Tenn. 1991) (the Public Records Act is “an all-

encompassing legislative attempt to cover all printed material created or received by

government in its official capacity.”); Memphis Publ’g Co. v. Holt, 710 S.W.2d 513

(Tenn. 1986) (closed investigative report of the Memphis Police Department was a

public record). In Holt, this Court specifically rejected an invitation to judicially create a

public policy exception to the Act, re-affirming that:

It is the prerogative of the legislature to declare the policy of the State

touching the general welfare. And where the legislature speaks upon a

particular subject, its utterance is the public policy . . . upon that subject.

Id. at 517 (citation omitted).

In the present case, we are confronted with an issue of first impression in

Tennessee, that is, the application of the Public Records Act to information that is

stored and maintained via computerized technology. Our interpretation will have broad

application because of the increasing use of such technology to store public

information. As one commentator has said:

Over the past decade or more, government computer use has increased

dramatically. In just a few years, some agencies have gone from filing

paper records on seemingly endless rows of shelves in huge storage

rooms to keeping most of those records in computers. . . . As years have

passed and governments have grown, so has the amount of records

governments keep. In many cases it has become impractical, if not

impossible, to continue to handle paper records. It takes too much space

and too many employees to keep track of paper records. At the same

time, the cost of basic computer technology has plummeted, making

computers affordable to even the smallest governmental units.

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Matthew D. Bunker, Access to Government-Held Information in the Computer Age:

Applying Legal Doctrine to Emerging Technology, 20 Fla. St. U. L. Rev. 543, 559

(1993).

As Bunker suggests, a more difficult issue with regard to public access is

generated from the numerous formats in which electronic information may be stored

and retrieved from computer systems. For example, he asks:

Are computerized public records subject to the same degree of access as

records in their traditional forms? Who decides the form in which

computerized records are made available to the public? Is a computer

tape itself a public record and subject to copying, or can agencies meet

their statutory obligations by providing paper copies of information? Are

computer programs themselves, as distinct from the information stored in

computers, public records?

Id. at 568; see also Henry D. Perritt, Jr., Electronic Acquisition and Release of Federal

Agency Information: Analysis of Recommendations Adopted by the Administrative

Conference of the United States, 41 Admin. L. Rev. 253, 295 (1989). The following

example is illustrative:

[A] journalist might want to search a courthouse computer database to

determine whether a certain judge has been tough or lenient in sentencing

drunk drivers. But rather than reviewing every drunk driving case, the

journalist may want to sort the cases by the judge’s name. So the

journalist might ask the records custodian to modify the database

management system or applications program to allow the search. Some

users believe that to take full advantage of the new electronic information

technology, agencies should provide this type of reprogramming. Some

records custodians, however, have argued that such searches create

‘new’ records, something not required under most freedom of information

laws. In addition, custodians have said, the cost and the time it takes to

reprogram are prohibitive.

Bunker, supra, at 561 (emphasis added).

While it ruled in favor of NES, the Court of Appeals did not directly address these

issues. It instead narrowly interpreted the definition of a “record” in Tenn. Code Ann.

§ 10-7-503(a) as “information gathered or organized on a particular subject and in a

particular format and not the information or data itself.” Since the parties agreed that

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NES did not possess the requested material in the particular format requested by The

Tennessean, i.e., customer names, addresses and telephone numbers, the appellate

court reasoned that the Public Records Act did not require NES to alter its existing

records or to create a new record at the request of a citizen. The appellate court also

concluded that the information requested by The Tennessean was not “made or

received pursuant to law or ordinance or in connection with the transaction of official

business.” See Tenn. Code Ann. § 10-7-301(6).

We believe 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.

It is clear that the legislature intended that the Public Records Act apply to computer

records by defining a “record” to include “electronic data processing files and output.”

Id. Moreover, a record as defined in the Act also includes “other material, regardless

of physical form or characteristics.” Id. A “record,” therefore, is broadly defined by the

legislature and does not consist of a particular physical format or form.7

In addition, although few courts have addressed the precise issue presented in

this case, several have previously analyzed the format issue and held that the particular

format of a record is not dispositive of whether it must be disclosed to the public.

For example, a Florida appellate court considered the format issue in Seigle v.

Barry, 422 So.2d 63 (Fla. Dist. Ct. App. 1982). Access was sought to public records

maintained on computer, and payment was offered for a program that would produce

the records in the desired format. The court began its analysis by observing that “there

can be no doubt that information stored on a computer is as much a public record as a

written page in a book or a tabulation in a file stored in a filing cabinet.” Id. at 65. The

court also explained that “all of the information in the computer, not merely that which a

7

In fact, we note that the definition of “material” includes “ideas, notes, observations, sketches,

etc. that m ay be wor ked up or elabora ted; data .” W ebster’s New W orld Dictionary, 874 (2d ed. 1980)

(em phasis a dded); see also Bunk er, supra, at 597 (“information in a computer already exists as a

governme nt record”).

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particular program accesses, should be available for examination and copying in

keeping with the public policy underlying the right to know statutes.” Id.

The court then turned to “the more insidious question of whether the public may

require information contained in public records to be made available for inspection and

copying in a particular format.” Id. (emphasis in original). After discussing the

competing interests between the public’s right of access to information in a meaningful

format and the burden on an agency to comply with requests for information, the court

held that an agency not only must allow access to computerized records through the

use of its existing programs, but also must create a new program to access public

records in circumstances where “available programs do not access all of the public

records stored in the computer’s data bank.” Id. at 66-67 (emphasis in original). The

court remanded the case for a hearing on these issues.

The Illinois Supreme Court considered the same issue and reached a similar

conclusion in Hamer v. Lentz, 547 N.E.2d 191 (Ill. 1989). There, the plaintiffs

requested information from the General Assembly Retirement System, which included

the length of service and the total pension of all former General Assembly members.

The defendant refused to disclose the information, arguing that it was not required to go

through its records and create a new document. The Illinois Supreme Court rejected

this argument by saying:

[T]he defendants’ position seems to be that if information is located in two

different places, producing that information involves the creation of a new

record. Such a position is supported neither by legal authority nor by

logic.

We conclude that the appellate court correctly ruled that

defendant[s] must disclose all of the requested information.

Id. at 194. The court also said that if necessary the defendant was required to create a

computer program that would generate the requested information onto hard copy. Id. at

195. See also Family Life League v. Department of Pub. Aid, 493 N.E.2d 1054 (Ill.

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1986) (defendant was ordered to create a special computer program to delete the

exempted information).

The Kansas Supreme Court considered the issue of confidential information in

State ex rel. Stephan v. Harder, 641 P.2d 366 (Kan. 1982). The plaintiffs sought non-

exempt medical information from the Secretary of Social and Rehabilitative Services.

The defendant asserted, and the testimony showed, that the information sought was

contained in the agency’s computer system, but was combined with other information

that contained confidential information. The evidence also showed that a computer

program could be designed to extract the non-exempt material from the confidential

information. The trial court ruled that the agency had no duty to segregate the

disclosable material, but the Kansas Supreme Court reversed:

We hold that the [public records] act implies a duty upon the agency to

delete confidential and nondisclosable information from that which may be

disclosed, and thus to carry out the act’s purpose of making available for

public inspection all disclosable parts of the public record. Were this not

so, any record which an agency is required by law to keep could be

rendered inaccessible to public scrutiny by including confidential material

therein.

The disclosure of the information sought, either by deleting

confidential information from the existing record or by extracting the

requested information therefrom, does not require the ‘creation’ of a new

public record.

Id. at 374.

Finally, in a Connecticut case, Maher v. Freedom of Info. Comm’n, 472 A.2d 321

(Conn. 1984), a variety of information was requested regarding medication prescribed

to state Medicaid recipients. The information was maintained on computer tape by the

Department of Income Maintenance (DIM). The Connecticut Supreme Court rejected

DIM’s defense that it did not maintain the records in the form requested and concluded

that “[w]here, as here, the information sought is presently stored in the agency’s data

base, and the cost of the new program is to be borne by the person seeking the

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information, an order compelling production of computer tapes is within the powers

statutorily conferred. . . .” Id. at 325.

One commentator has observed that “[i]t is more desirable to charge requesters

the actual costs of retrieval, or provide them with retrieval hardware, software and

documentation, than to decline . . . requests for electronic information because they

require ‘programming’ or generating new records.” Perritt, supra, at 295 (footnote

omitted).8

The defendant NES has cited two cases for an opposing view which, in our

judgment, are distinguishable. In Seaton v. Johnson, 898 S.W.2d 232 (Tenn. App.

1995), an attorney representing victims killed in an automobile accident that occurred at

a railroad crossing sought what the Court of Appeals called a “shopping list of

information” from the Department of Transportation, including the average daily vehicle

and locomotive traffic at the accident site, the method for computing the average daily

traffic, the accident history, and the installation costs and history of traffic control

devices. The Court of Appeals held that disclosure was not required based on a federal

statute that preempted the Tennessee Public Records Act. Id. at 237.

The other case relied on by the defendant is George v. Record Custodian, 485

N.W.2d 460 (Wis. Ct. App. 1992). There, an inmate asked for the number of claims

received by the Department of Justice from 1988-1990, the number of cases settled

without litigation, and the number of cases disallowed. The W isconsin appellate court

held that the records custodian was not required under the public records act to “collect

or compile statistics or create a record for the benefit of a requester.” Id. at 462.

8

These cases are consistent with principles that have been applied to non-computerized records.

Long v. IRS, 596 F.2d 362 (9th Cir. 1979) (deletion of information from a public record does not create a

new rec ord); Disa bled O ffice r’s As s’n v. R um sfeld , 428 F. Supp. 454, 457 (D.D.C . 1977) (that plaintiff

“phras ed its requ est in a so mew hat differe nt form does n ot affect th e subs tance o f the requ est”); Northern

Cal. P olice P rac., Etc. v . Cra ig, 153 Cal. Rptr. 173, 178 (Cal. Ct. App. 1979) (focus is on “information, not

doc um ents , and an ag enc y cann ot jus tify with holdin g an e ntire d ocu me nt sim ply by sh owin g tha t it

contains som e exem pt ma terial”); Bowie v. E vanston Com mun ity Consol. S ch. Dist. , 538 N.E. 2d 55 7 (Ill.

1989) (d eleting inform ation from a record does n ot create a new re cord).

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In contrast to Seaton and George, The Tennessean’s request did not require

NES to compile or collect statistics, nor did it require an explanation, interpretation, or

analysis of information. NES did not claim that the requested information was exempt

from disclosure, nor did it contend that it lacked the information. The question

presented in this case is one of format and access.

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. As one commentator observed, “[a]gencies may not design systems with

access in mind, only to claim later that information is unavailable because ‘our

computers can’t do that.’” Bunker, supra, at 594. Indeed, such a defense invoked at

random by an agency would frustrate the purpose of the Public Records Act at nearly

every turn.

Accordingly, we reverse the Court of Appeals and reinstate the trial court’s

judgment that NES was required to disclose the information under the facts of this case.

Costs

We now address the issue of the costs charged by NES for producing the

requested material and for notifying its customers by first class mail that a request for

the information had been made. In upholding such costs, both the trial court and the

Court of Appeals cited the following provision under the Public Records Act:

In all cases where any person has the right to inspect any such public

records, such person shall have the right to take extracts or make copies

thereof, and to make photographs or photostats of the same while such

records are in the possession, custody and control of the lawful custodian

thereof or such authorized custodian’s deputy; provided, the lawful

custodian of such records shall have the right to adopt and enforce

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reasonable rules governing the making of such extracts, copies,

photographs or photostats.

Tenn. Code Ann. § 10-7-506(a) (emphasis added).

Although The Tennessean concedes that NES could properly charge for the

costs incurred in making or extracting the requested material from its existing records, it

argues that the charges assessed under NES’s customer notification policy were not

authorized by statute and amounted to an effective denial of records. The Tennessean

maintains that § -506(a) conveys only “a ministerial authority to . . . charge for or allow

time periods for, the copying of documents” and not authority to impose “substantive”

conditions for disclosing information required under the Act. NES argues, and the lower

courts found, that the notification policy was a reasonable means to protect the privacy

and safety of its customers.

We think the language and meaning of Tenn. Code Ann. § 10-7-506(a) is plain:

that an agency may enforce reasonable rules “governing the making of such extracts,

copies, photographs or photostats.” Those actual costs incurred by NES for disclosing

the material requested by The Tennessean are recoverable under this statute. In

contrast, there is no authority under the Act allowing an agency to establish rules that

would substantially inhibit disclosure of records. Moreover, limiting an agency to rules

that govern only the actual “making” of the extracts, copies, photographs or photostats

is consistent with the legislative policy in favor of the fullest possible public access.

Our review is governed solely by the language in the Public Records Act and the

clear mandate in favor of disclosure. We do not question the sincerity or intention of

NES in making a policy that is, on the surface, in the interests of its customers’ privacy

or safety. Yet these and any other matters of public policy that may affect the rights of

access under the Public Records Act may not be adopted ad hoc by a government

agency without action by the legislature. As we said in Holt:

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It is the prerogative of the legislature to declare the policy of the State

touching the general welfare. And where the legislature speaks upon a

particular subject, its utterance is the public policy . . . upon that subject.

710 S.W.2d at 517 (citation omitted).

Accordingly, we have determined that the Public Records Act authorizes NES to

require payment for actual costs incurred in disclosing the requested records but

contains no statutory authorization for requiring payment of costs to implement NES’s

customer notification policy.

CONCLUSION

We conclude that the trial court correctly determined that the information sought

by The Tennessean constituted a public record that had to be disclosed by NES under

the Tennessee Public Records Act. We further conclude that while NES could require

payment of costs incurred in disclosing the requested material, it was not authorized by

the Act to require payment of costs for its own customer notification policy. Accordingly,

the judgment of the Court of Appeals is reversed, and the case is remanded to the trial

court for further proceedings. Costs on appeal shall be paid by NES, for which

execution shall issue if necessary.

_______________________________

RILEY ANDERSON, CHIEF JUSTICE

CONCUR:

Drowota, Birch, and Holder, JJ.

Russell, Sp. J.

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