Opinion

Harold Lee Jackson v. Jim Rout, Mayor of Shelby County

Court
Court of Appeals of Tennessee
Filed
Sep 18, 2001
Status
Published
Cited by
0 cases
Authority
More cited than 29.9%

The opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

September 18, 2001 Session

HAROLD LEE JACKSON v. JIM ROUT, Mayor of Shelby County, ET AL.

A Direct Appeal from the Chancery Court for Shelby County

No. CH-00-0776-3 The Honorable D. J. Alissandratos, Chancellor

No. W2000-02974-COA-R3-CV - Filed November 26, 2001

Citizen filed a petition against county mayor, county sheriff, and county commissioner of

public records alleging that he was not furnished the records that he had requested. The trial court

sustained the respondent’s motion to dismiss for failure to state a claim upon which relief can be

granted. Petitioner appeals. We reverse.

Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Chancery Court Reversed and

Remanded

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,

J. and HOLLY KIRBY LILLARD, J., joined.

Harold Lee Jackson, Pro Se

Donnie E. Wilson, Shelby County Attorney; Renee Allen-Walker, Senior Assistant County Attorney,

For Appellees

OPINION

Petitioner, Harold Lee Jackson, filed a petition in chancery court pursuant to the Tennessee

Public Records Act against Jim Rout, Mayor of Shelby County, A. C. Gilless, Sheriff of Shelby

County, and Helen R. Wren, Commander of Records and Identification Department of Shelby

County Sheriff’s Office. The petition avers that it is filed pursuant to T.C.A. § 10-7-505 to require

respondents to show cause why he was denied request for access to public records. The petition

alleges that he has reason to believe that while he was incarcerated in the Shelby County jail in 1974

he was subjected to an experiment and described the technology as “nanotechnology.” The petition

alleges that on February 20, 2000, he wrote the sheriff’s office requesting access to public records

related to the alleged experiment. He alleges that he was advised by letter from the sheriff’s office

that a search of the records would be made for $18.00 and that he sent an eighteen dollar money

order for the search. He avers that he received a reply April 6, 2000, but that it “had nothing to do

with my request, so the sheriff of Shelby County jail public information office’s reply was denying

my request.” He avers that the information sent was his criminal arrest record with no information

whatsoever concerning any experiment or anything of that nature. He alleges that the respondents

violated the open records act.

On May 26, 2000, respondents filed a motion to dismiss pursuant to Tenn.R.Civ.P. 12.02 (6)

for failure to state a claim upon which relief can be granted or in the alternative for summary

judgment. The motion states in pertinent part:

1. The Complaint fails to state a claim upon which relief may be

granted.

2. There is no genuine issue of material fact, and Respondents are

entitled to summary judgment as a matter of law.

3. Respondents have no knowledge of “Nanotechnology,” no records

related to it, nor have Respondents conducted any “Nanotechnology”

experiments on Petitioner.

4. The Complaint is frivolous, and is not warranted by existing law

or facts.

5. Respondents rely upon their Memorandum submitted to the Court,

and upon the Affidavit filed with the Court.

The record does not contain the affidavit referred to in the motion; therefore, the matter is

considered as a 12.02 (6) motion. The trial court’s order specifically provides that the ground for

dismissal is failure to state a claim upon which relief can be granted. The only issue on appeal is

whether the trial court erred in dismissing the petition.

A motion to dismiss a complaint for failure to state a claim upon which relief can be granted

tests the legal sufficiency of the complaint. It admits the truth of all relevant and material allegations

but asserts that such allegations do not constitute a cause of action as a matter of law. Riggs v.

Burson, 941 S.W.2d 44 (Tenn. 1997). Obviously, when considering a motion to dismiss for failure

to state a claim upon which relief can be granted, we are limited to the examination of the complaint

alone. See Wolcotts Fin. Serv., Inc. v. McReynolds, 807 S.W.2d 708 (Tenn. Ct. App. 1990). The

basis for the motion is that the allegations in the complaint considered alone and taken as true are

insufficient to state a claim as a matter of law. Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975).

In considering such a motion, the court should construe the complaint liberally in favor of the

plaintiff, taking all the allegations of fact therein as true. Cook Uithoven v. Spinnaker’s of

Rivergate, Inc., 878 S.W.2d 934 (Tenn. 1994).

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T.C.A. § 10-7-503 (Supp. 2000), dealing with the opening of all public records for inspection

by citizens of the state, provides in pertinent part:

(a) Except a 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.

* * *

The procedure for enforcing the right of inspection is provided for in T.C.A. § 10-7-505

(1999), which states in pertinent part:

(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. . . . 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.

* * *

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A review of the petition filed in this case reveals that there is no allegation that the petitioner

requested the right of personal inspection of the records, nor is there any allegation that those in

charge of the records refused any right of inspection requested by the petitioner. However, this Court

has previously ruled that strict compliance with the “personal appearance” requirement of the statute

is not required. In Waller v. Bryant, 16 S.W.3d 770 (Tenn. Ct. App. 1999), one of the issues

presented for review was whether the inability of the person seeking the records “to present himself

in person to inspect and request copies of the documents prohibits him from obtaining those copies

if he is otherwise entitled to receive them under the public records act.” In this regard, the Court

said:

It is this Court's duty to apply rather than construe the

language of the Public Records Act, since the intent of the

Legislature is represented by clear and unambiguous language. See

Cammuse v. Davidson Co. District Attorney, No. 01A01-9709-CH-

00503 (Tenn. App., filed March 24, 1999 [no appl. perm. app.]).

While Appellees do not have an obligation to review and search their

records pursuant to a Public Records Act request, they do have the

clear obligation to produce those records for inspection, unless

otherwise provided by state law, and to provide a copy or copies of

any such record requested by such citizen, upon the payment of a

reasonable charge or fee therefor. See Tennessean v. Electrical

Power Board of Nashville, 979 S.W.2d 297, 303 (Tenn. 1998). If

the citizen requesting inspection and copying of the documents can

sufficiently identify those documents so that Appellees know which

documents to copy, a requirement that the citizen must appear in

person to request a copy of those documents would place form over

substance and not be consistent with the clear intent of the

Legislature. The adoption of the Appellees’ position would mean that

any citizen who was unable to personally appear before the records

custodian would be unable to obtain copies of the documents

pursuant to the Public Records Act. This restriction would prohibit

all Tennessee citizens who are unable, because of health reasons or

other physical limitations, to appear before the records custodian

from obtaining copies of public documents pursuant to the Public

Records Act. Such a result is not consistent with the clear intent of

the Legislature, and this Court will not interpret this statute in such a

way as to prohibit those citizens, or those citizens incarcerated, from

the rights provided by the Public Records Act. Appellees can fix a

charge or fee per copy so as to recover the actual cost of producing

and delivering the copies. Id.

Id. at 773-74.

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It appears from the exhibits to appellant’s petition in the trial court that identifying data was

furnished concerning the records sought and that the records custodian had agreed to furnish records

for the payment of the fee. Respondents’ motion to dismiss states in part:

3. Respondents have no knowledge of “Nanotechnology,” no records

related to it, nor have Respondents conducted any “Nanotechnology”

experiments on Petitioner.

No affidavit, nor any other type of sworn testimony was filed by respondents. T.C.A. § 10-7-

505 (c) provides as follows:

(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.

Therefore, the complaint states a cause of action upon which relief can be granted. Certainly,

this does not indicate in any way a decision on the merits of the case.

Accordingly, the order of the trial court dismissing appellant’s petition is reversed, and the

case is remanded to the trial court for such further proceedings as necessary. Costs of the appeal are

assessed against the respondents, Jim Rout, Mayor of Shelby County; A.C. Gilless, Sheriff of Shelby

County Jail; and Helen R. Wren, Commander of Public Records at the Shelby County Jail.

__________________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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