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BY DEBORAH FISHER

Late last year, the city of Memphis wrote a $7,419.68 check to reimburse the attorney fees of journalist Marc Perrusquia rather than risk losing a public records lawsuit.

The city folded before the case got before a judge. What was the issue?

For 2-1/2 years, the city had sent Perrusquia monthly emails, telling him that it was still working on his public records request and trying to decide whether they could withhold parts or all of the records.

“It was like reporting on the Kremlin, so much secrecy, opacity… They did not refuse to give it to us. They just kept delaying and delaying,” Perrusquia said.

“Our argument was justice delayed is justice denied. The continuation of delaying our request was basically a denial.”

This kind of delay is not the worst I’ve seen in Tennessee, nor is it uncommon.

In Knoxville, WBIR anchor John Becker made a public records request to the University of Tennessee in August 2022. It took almost a year for the university to turn over two of the records he sought. But it continued to withhold others, taking months to tell Becker what laws allowed the university to keep those confidential.

Becker eventually filed a public records lawsuit. On the eve of a hearing in May in a Knoxville court, UT caved. Its lawyer told the court that the laws they had thought would allow the university to withhold or redact the records weren’t applicable after all.

The court hearing occurred anyway, with Becker asking for reimbursed attorney fees.

Consider this: In both cases, if no lawsuit had been filed, two major government institutions would have simply kept delaying and refusing access to public records.

That’s a problem.

In both situations, I do not believe the responses given by the government followed the law.

The public records statute gives government entities three options of how to respond to a public records request and says that response must happen no later than seven days after the request:

1. Give access to the records;
2. Deny access to the records, citing the basis for the denial; or
3. Furnish the requester, in writing, the time it will take to produce the record.

Knoxville Chancellor John Weaver noted in court that UT did not do that. It didn’t deny access to the records within seven business days citing its legal basis for denial. The university said it needed more time and used that time to come up with potential reasons to withhold the records, not produce them.

Weaver remarked this is not what the statute says. If you ask for more time, you’re asking for more time to produce the record, not more time to deny the record. If you’re going to deny records, you must do that within seven days.

The statute also says the government entity is to tell the requester “the time” it will take to produce the record. It does not say you can tell the requester that you’re still working on it, with no end in sight, as in the Memphis case.

Neither Memphis nor UT followed the clear language of the statute. And when it came time for their actions to come under the bright light of court scrutiny, they threw in the towel.

Tennessee ranked 45th among all states in compliance with public record requests in a study that examined 7,000 requests to state agencies throughout the United States.

David Cuillier, who did the study and is director of The Freedom of Information Project with the Brechner Center for the Advancement of the First Amendment, observed that the states with the best compliance had laws that required government entities to pay when they lost a public records lawsuit.

Tennessee does not have mandatory fee shifting. Rather, when the government loses, the judge has to find that the government was “willful” when it violated the public records law. And even then, the judge has discretion on whether to make the government entity pay the requester’s attorney fees.

“States that allow judges broad discretion, or impose high burdens of success for litigating requesters, demonstrate worse compliance than states that mandate judges to impose attorney fees. Certainly, agencies might not worry about a $1,000 fine or other slap on the wrist, but it appears they pay attention to pay tens if not hundreds of thousands of dollars to a successful plaintiff’s attorney, not to mention the bad publicity that would create for the agency” Cuillier wrote in his research, “Bigger Stick, Better Compliance?”

Perrusquia eventually got the records, but he worries that most journalists and citizens would simply give up.

“I’ve been in the business for 40 years, knowing public records and fighting for them,” Perrusquia said. The delays have a chilling effect on asking for public records in the first place, he said.

Perrusquia and Becker both had an attorney with the Reporters Committee for Freedom of the Press taking their case. But most don’t have the money or time to press a case through the courts and get the government entity to follow the law.

If citizens and journalists are going to keep government open in Tennessee, we might just need a bigger stick.

(Deborah Fisher is executive director of Tennessee Coalition for Open Government. She can be reached through the website tcog.info)