Chantal Eldridge v. Putnam County ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 6, 2001 Session
CHANTAL M. ELDRIDGE v. PUTNAM COUNTY, TENNESSEE
Appeal from the Chancery Court for Putnam County
No. 2000-256 Vernon Neal, Judge
No. M2000-02963-COA-R3-CV - Filed December 18, 2001
This is a case about the Open Records Act as applied to the telephone records of a Drug Task Force.
After the Chancery Court of Putnam County ordered the County to produce the records, the County
appealed, arguing that the records fit an exception to the Act or that the County should be able at the
plaintiff’s expense to redact the records to delete confidential information. We modify the
chancellor’s order to allow the County to redact the records at their own expense.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed as Modified and Remanded
BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which PATRICIA J. COTTRELL ,
J. and WALTER C. KURTZ, SP . J., joined.
Jeffrey G. Jones, Cookeville, Tennessee, for the appellant, Putnam County.
Chantal M. Eldridge, Cookeville, Tennessee, Pro Se.
OPINION
On March 28, 2000, the plaintiff, Chantal M. Eldridge, submitted a request to inspect the
1991 to 1993 telephone records which were paid for by public funds for the District Attorney
General’s office for the Thirteenth Judicial Circuit. Putnam County responded by asserting that
some of the records might contain information that should be kept confidential because it pertained
to on-going criminal investigations. When Ms. Eldridge persisted, the County first asserted that it
would conduct a review of the records to see whether they contained any privileged information, and
then the County demanded a $1,000.00 deposit to cover the cost of hiring former employees to
conduct the review.
On August 9, 2000, Ms. Eldridge filed a petition in the Chancery Court of Putnam County
asking that she be allowed to inspect and copy the records she sought in her various requests. The
County denied in its answer that the records she sought were public records and denied that it acted
willfully or in bad faith in refusing to disclose them.
Only two witnesses testified at the hearing. A County employee in charge of accounts
payable testified that the cellular telephone bills for the Thirteenth Judicial Drug Task Force were
paid out of public funds and were treated as any other public record: they were sent to her without
any information being deleted; she was not instructed to keep the records secret; and she kept them
in a regular file, open for inspection by anyone who made a request and filled out the proper forms.
The District Attorney General who served as Chairman of the Drug Task Force confirmed
that there were no oral or written directives given to the County to restrict access to the telephone
records. Nor had the Task Force made any efforts to delete any confidential information from the
records. He testified that in his opinion the telephone bills could contain the telephone numbers of
undercover officers, their family members, and confidential informants. He could not testify about
any specific information that should be kept confidential. The District Attorney testified that many
of the persons that worked on the Task Force no longer worked there and that to locate them and get
them to review the records for confidential information would probably cost the County twenty
dollars an hour for their time. That was the reason for the $1,000.00 expense deposit.
The chancellor held that the County had failed to carry its burden of proof to show that the
records were not subject to the Public Records Act, Tenn. Code Ann. § § 10-7-503 – 505. The final
decree ordered the County to produce the records for the plaintiff’s inspection and allowed the
plaintiff to copy the records at her own expense.
II.
Tenn. Code Ann. § 10-7-503(a) provides that all state, county, and municipal records, except
those made confidential by Tenn. Code Ann. § 10-7-504(f), and those authorized to be destroyed by
Tenn. Code Ann. § 10-7-404, “shall at all times, during business hours, be open for personal
inspection by any citizen of Tennessee . . . .” Those in charge of such records are forbidden to refuse
any citizen the right to inspect such records “unless otherwise provided by state law.” Id. The
records in question are unquestionably public records; the County does not seriously contend
otherwise.
The County insists, however, that the records in question may contain confidential
information. Tenn. Code Ann. § 10-7-504(f) protects from disclosure certain employee information,
including an employee’s unpublished telephone number, bank account information, social security
number, and driver license information, except where driving or operating a vehicle is part of the
employee’s job description or job duties or incidental to the performance of the employee’s job. The
confidentiality extends to the same information of a member of the employee’s immediate family
or household. Paragraph (2) of Tenn. Code Ann. § 10-7-504(f) provides that the confidential
information shall be redacted whenever possible, but the fact that a file or document contains
confidential information shall not be used to limit or deny access to otherwise public information.
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The chancellor was correct in finding that the county had failed to show that the records in
question contained any confidential information. The casual way in which the telephone records had
been kept indicates either that they did not contain any confidential information or that the county
was unconcerned about protecting that confidentiality until the petitioner sought access to the
records.
We hesitate, however, to take any action that would place anyone’s life in danger. If the
County shares that concern, it should be allowed, at its own expense, to redact the telephone records
to remove any information made confidential by Tenn. Code Ann. § 10-7-504(f). Any redaction,
however, will be subject to review by the chancellor. We modify the chancellor’s order to that
extent.
The County cites The Tennessean v. Electric Power Board of Nashville, 979 S.W.2d 297(Tenn. 1998), as authority for the County’s demand for payment of the expenses incurred in finding
the confidential information that should be redacted. We find, however, that the two cases are
different. In The Tennessean, the Supreme Court found that the statutes allowed a recovery for the
costs of “making . . . extracts, copies, photographs or photostats” of the records. 979 S.W.2d at 305.
So far, the plaintiff has not asked the county for any of these services.
The County also argues on appeal that Tenn. Code Ann. § 10-7-504(g)(1) dealing with police
officers working undercover also makes confidential certain information included in the telephone
records. This section, however deals with information segregated and kept by the chief law
enforcement officer of the entity for which the officer is working. It is not one of the exceptions
listed in Tenn. Code Ann. § 10-7-503. So, technically, this section is irrelevant to the issues on
appeal, but to the extent that the undercover officer is a state, county, or municipal employee and
his/her telephone number is unlisted, it is confidential under Tenn. Code Ann. § 10-7-504(f).
The County also argues that there is an “informer privilege” in Tennessee that would exempt
from disclosure any record that contained the identity of a confidential informer. See State v.
Osborne, 712 S.W.2d 488 (Tenn. Crim. App. 1986); Roberts v. State, 489 S.W.2d 263 (Tenn. Crim.
App. 1972). We are not here concerned, however, with the informer privilege as it may be applied
in the context of a criminal prosecution. We will leave that to the criminal courts. Our Supreme
Court in Memphis Publishing Co. v. Holt, 710 S.W.2d 513 (Tenn. 1986), held that with respect to
a closed investigative file, a public official can only justify refusing a Tennessee citizen access to
public records by proving by a preponderance of the evidence that the record comes within a
statutory exemption. In Ballard v. Herzke, 924 S.W.2d 652 (Tenn. 1996), the Court held that the
Public Records Act did not cover documents made exempt from discovery by the Rules of Civil
Procedure. This court held in Arnold v. City of Chattanooga, 19 S.W.3d 779 (Tenn. Ct. App. 2000)
that other exemptions may be found in the common law. To the extent that the County believes any
of these exemptions apply to the telephone numbers at issue in this case, they may try to make their
case before the chancellor on remand.
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III.
The plaintiff argues that the County’s appeal is frivolous and that she should be awarded
damages pursuant to Tenn. Code Ann. § 27-1-122. We find, however, that the appeal is not
frivolous.
The judgment below is modified as indicated herein, affirmed, and remanded to the Chancery
Court of Putnam County for further proceedings. Tax the costs on appeal to the appellant, Putnam
County.
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BEN H. CANTRELL, PRESIDING JUDGE, M.S.
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