FOREWORD

Public records. Tennessee's Public Records Act, originally passed by the legislature in 1957, mandates that governmental entities grant full access to public records to every citizen of Tennessee. The legislative policy behind the Act is enunciated in the enforcement provision that directs courts to construe the Act broadly "so as to give the fullest possible access to public records." Tennessee Code Annotated ("T.C.A.") § 10-7-505(d) (1999). The original 1957 Act provided that "[a]ll state, county and municipal records" shall be open for inspection "unless otherwise provided by law or regulations made pursuant thereto." (Emphasis added.) In 1984, the legislature amended the emphasized portion to read: "unless otherwise provided by state statutes." The Tennessee Supreme Court has construed this amendment as reserving to the legislature alone the power to make exceptions to the accessibility of public records. Memphis Publishing Co. v. Holt, 710 S.W.2d 513, 517 (Tenn. 1986). In 1991, however, the specific language was further amended to read: "unless otherwise provided by state law." The change from "state statute" to "state law" arguably broadens the means of limiting access beyond the holding in Holt to include exemptions under common law privileges. The Public Records Act continues to go through many revisions. In addition to separate statutes throughout the Tennessee Code that create new exemptions to the Act, the Act itself was subjected to at least ten different pieces of legislation between 2001 and 2004 that modified the Act.

In 2008 the Public Records Act received substantial revisions to make it more user friendly.  Changes to the Act included imposing a deadline for records custodians to respond to a request, and provisions to set a reasonable price for copies of records. Also in 2008, Tennessee created the Office of Open Records Counsel, as a department of the State Controller, to assist and advise public officials and the public, including the media, with open records issues. The Open Records Counsel serves as an ombudsman that can mediate open records disputes and issue written opinions concerning open records issues. The office of Open Records Counsel, and its Advisory Committee, may also review and make comments to the General Assembly on any legislation affecting Open Meetings.

Open meetings. When the General Assembly enacted the Sunshine Law in 1974, Tennessee became the 46th state to fashion such legislation. A 1957 attempt to draft open meeting legislation died in committee. The legislature's source of authority to enact the Sunshine Law is Article 1, Section 19 of the Tennessee Constitution which provides: "That the printing presses shall be free to every person to examine the proceedings of the legislature; or of any branch or officer of the government, and no law shall ever be made to restrain the right thereof." The opening policy statement of the Tennessee Sunshine Act echoes and specifies this broad grant of the public's right to open government:

The general assembly hereby declares it to be the policy of this state that the formation of public policy and decisions is public business and shall not be conducted in secret. This part shall not be construed to limit any of the rights and privileges contained in Article I, § 19, of the constitution of the state of Tennessee.

T.C.A. §§ 8-44-101(a) and (b) (1995). The broad legislative mandate that "all meetings of any governing body . . . [be] open to the public at all times, except as provided by the Tennessee Constitution," T.C.A. § 8-44-102(a) (1995), has survived vigorous constitutional challenges that the law was vague, ambiguous, unreasonable, and arbitrary and chilled free speech. Dorrier v. Dark, 537 S.W.2d 888 (Tenn. 1976); Memphis Publishing Co. v. City of Memphis, 513 S.W.2d 511 (Tenn. 1974).

Thus, from its enactment, the Tennessee Sunshine Law has been construed as embodying the will of the people, speaking through their elected legislative representatives, that the benefits of open government be safeguarded through a statute that secures these benefits in broad terms. The definitional provisions of the Sunshine Law are equally sweeping. Instead of listing those government entities subject to public scrutiny, the law as enacted defines governing body to include "members of any public body which consists of two or more members, with the authority to make decisions for or recommendations to a public body on policy or administration." T.C.A. §§  8-44-102(b)(1) (1995). This legislative history can be viewed as reflecting the lawmakers' intent that those governmental entities covered by the mandate of openness be construed expansively. Dorrier v. Dark, 537 S.W.2d at 891. Unfortunately, case law establishes that the Sunshine Law does not apply to the General Assembly itself. Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. Ct. App. 2001).