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Agencies cannot avoid record release by launching investigations

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  1. Freedom of Information

    NMU         TENNESSEE         Freedom of Information    

Agencies cannot avoid record release by launching investigations

  • The Tennessee Court of Appeals ruled that a county election commission erred in claiming records transferred to an investigation became exempt from the open records law and not available to a Chattanooga newspaper.

Nov. 5, 2003 — Government agencies cannot circumvent public records requests by subsequently launching investigations into those records, the Tennessee Court of Appeals ruled last week.

The Oct. 31 ruling came after the Chattanooga Times Free Press was denied access to Hamilton County election records last December after the newspaper was tipped off of alleged voter irregularities. The County Election Commission, in refusing to release the documents, invoked an exemption to the state’s Public Records Act which seals records under probe by the Tennessee Bureau of Investigation (TBI).

The three-judge appeals panel noted the importance of a “free, fair, and transparent” election process in its decision, and ruled that the commission should not have withheld the documents because at the time of the newspaper’s request “there was no official investigation underway” involving the records.

The court held that to rule otherwise would “present the potential for abuse of the TBI” by state agencies looking to avoid complying with public records requests, and would “run counter to both the letter and spirit of the Public Records Act.”

Fran Dzik, the Hamilton County Elections Administrator, sent the records to TBI in early December, just one day after the Times Free Press formally requested them. Dzik then refused to comply with the newspaper’s requests, citing the TBI exemption.

At least one election commissioner criticized Dzik’s actions at the time. Commission Chairman Tyrone Waller told the Associated Press that the commission, and not Dzik, should have made the decision to begin an investigation.

According to Tom Griscom, executive editor and publisher of The Times Free Press, the newspaper was told by the commission that the records were at an off-site warehouse and that it would take about a week to locate them. The next day the commission managed to locate the records, immediately sent them to the TBI and declared them sealed, he said.

“It was only after our request was made that all of a sudden there was an interest shown in turning those documents over to the investigative bodies,” said Griscom.

The ruling overturns a trial court decision which held that the documents were sealed under the TBI exemption.

The records involve the election results of the race for the Hamilton County Commissioner’s seat in Ward 4. Suspicions arose in that race after cell phone records revealed that the winner of the election, William Cotton (D) of Chattanooga, had called an election official 154 times in the months before the election. The TBI plans to release the results of its investigation this month.

(Chattanooga Publishing Company v. Hamilton County Election Commission; Media lawyers: Anthony Jackson and Bruce Bailey, Chattanooga) MC

© 2003 The Reporters Committee for Freedom of the Press

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