J.D. Hickman v. Board of Parole

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 31, 2002
J.D. HICKMAN v. TENNESSEE BOARD OF PROBATION AND PAROLE
Appeal from the Chancery Court for Davidson County
No. 00-2350-II Carol McCoy, Chancellor
No. M2001-02346-COA-R3-CV - Filed March 4, 2003
Inmate filed a motion for declaratory relief regarding his rights to access certain materials held by
the Board of Probation and Parole and sought an order from the trial court mandating the production
of those materials at the expense of the Board. The trial court denied the motion for summary
judgment filed by the inmate and dismissed the action in its entirety because the requirements for
a mandatory injunction had not been met, but stated that the inmate was not prohibited from again
seeking the materials by identifying the specific documents he wanted copied and paying in advance
for the copies. We affirm the trial court’s decision to deny the motion for summary judgment, but
reverse the dismissal and remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed in Part, Reversed in Part and Remanded
PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and WILLIAM C. KOCH , JR., J., joined.
J.D. Hickman, Mountain City, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Arthur Crownover II, Senior Counsel, for the
appellee, Tennessee Board of Probation and Parole.
OPINION
In this appeal, a pro se inmate in the custody of the Tennessee Department of Correction
seeks review of the trial court’s decision to dismiss his motion for declaratory order in which he
sought access to certain records of the Tennessee Board of Probation and Parole.
Mr. Hickman filed a motion for declaratory order in Davidson County Chancery Court
seeking a “declaration of his rights under the Tennessee Constitution and the United States
Constitution as they relate to the Freedom of Information Act.” Mr. Hickman alleged that two
months earlier he had sought information pursuant to the Public Records Act, Tenn. Code Ann. §§
10-7-501 et seq., which was in the custody and control of the Board and that the Board had not
responded to his request after a reasonable amount of time had passed. According to Mr. Hickman,
the Board’s failure to respond amounted to a refusal of his access to such public records in violation
of the Public Records Act. His motion sought an order instructing the Board to allow Mr. Hickman
computer access to the information sought, or in the alternative, copies of all of the information
sought at the expense of the Board. Mr. Hickman attached what was purported to be a copy of the
request sent to the Board, requesting numerous pieces of information from inmate records from 1992
to the present date.
The Board filed a motion to dismiss pursuant to Tenn. R. Civ. P. 12 on the ground that the
trial court lacked subject matter jurisdiction under the Uniform Administrative Procedures Act
(“UAPA”) as the UAPA does not apply to the actions of the Board. The trial court denied the
motion to dismiss, stating that the Board’s “contention would be correct if this action were being
brought pursuant to the UAPA. However, Petitioner appears to be relying solely upon the Tennessee
Public Records Act in making his claim for relief.”
Mr. Hickman then filed a motion for summary judgment, arguing that there were no factual
issues in dispute and that he was entitled to judgment as a matter of law. The Board opposed the
motion for summary judgment by submitting the affidavit of Teresa Thomas, General Counsel for
the Board, and arguing that the Board never received a request from Mr. Hickman, and even if it had
received the request, it would not have complied for various stated reasons.
The affidavit states that Ms. Thomas does not recall receiving a letter from Mr. Hickman
which requested certain information and that after checking Mr. Hickman’s parole file, she was
unable to find a copy of the letter. Ms. Thomas indicated that she had received and responded to
other letters from Mr. Hickman in the past. Ms. Thomas summarized the procedure by which the
Board grants access to records in compliance with the Public Records Act as follows:
. . . If a citizen of Tennessee desires to inspect records of the Board of Probation and
Parole, he or she must come to the place where the records are kept, during normal
business hours, to inspect the records. For example, certain records, such as the main
parole files, are kept at the Central Office, 404 James Robertson Parkway, Suite
1300, Nashville, Tennessee. Other records are maintained at the individual field
offices across the state.
If a person desires copies of any of the records, the cost is $0.20 per page, payable
before the copies are made.
If a person cannot, or chooses not to, come to the place where the records are kept,
the person may contact the Board and request copies of the records. The person
should describe the records sought and payment of the $0.20 is required before the
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records are forwarded to the requesting person. There may also be a shipping charge
if the records are voluminous.
Ms. Thomas further explained that the information requested by Mr. Hickman was not
available in the manner he requested because the information is not maintained by the Board in the
manner specified by Mr. Hickman. Ms. Thomas stated that the majority of the information sought
by Mr. Hickman would have to be manually obtained and that some of the information was
confidential.
Mr. Hickman responded to the Board’s memorandum in opposition to summary judgment
by submitting an unauthenticated inmate information request form which sought to verify that a letter
was mailed to General Counsel for the Board on June 5, 2000.
The trial court issued an order denying the motion for summary judgment and dismissing Mr.
Hickman’s action by stating:
Petitioner [Mr. Hickman] purportedly seeks a declaration of his rights under the
Tennessee Public Records Act, T.C.A. § 10-7-501, et seq. Petitioner is actually
seeking mandatory injunctive relief. He has requested an order compelling access
to records of the Tennessee Board of Probation and Paroles. More specifically, he
seeks information regarding all TDOC inmates convicted of class A, B, and C
felonies who have been certified for parole since January 1992, and various
compilations of data relating to such inmates’ parole records. . . .
....
As the parties dispute whether or not a formal records request was sent to Respondent
[the Board], this is not an appropriate matter for summary judgment. Accordingly,
Petitioner’s motion for summary judgment is denied. However, this matter should
be dismissed for the following reasons.
Petitioner’s initial action was designated as a “Motion for Declaratory Order.” As
a former lawyer, Petitioner should be aware that all original actions in Chancery
Court are commenced by the filing of a complaint, not a motion. Further, the remedy
he seeks is not a declaration of his rights, but an order directing that the Respondents
provide him with computer access to files, or alternatively, with copies of all the
information he seeks, at Respondents’ expense. As Petitioner seeks relief in the
nature of a mandatory injunction, his request needs to address the requirements for
such relief: irreparable harm should the relief not be granted, a likelihood of success
on the merits, a balancing of the interests of each party, and the public interest. A
review of his pleadings show that Petitioner has failed to demonstrate any irreparable
harm. The caselaw clearly states that he is entitled to public records. Cole v.
Campbell, 968 S.W.2d 274 (Tenn. 1998). Accordingly, he may seek the documents,
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if they exist, by mail, provided that he clearly identifies each file and each document
that he wants copied and provided that he advance the costs for such copies.
On appeal, Mr. Hickman argues that he was not seeking injunctive relief, but rather a
declaration of his rights under the Tennessee Public Records Act. In particular, he avers that he
sought a “declaration that [he] must be provided with any and all documents requested (allowable
by law, and with payment of the proper cost) by the Appellee; and that all costs be taxed to the
Appellee.”
I. Public Records Act
As the trial court correctly stated, this is an action to obtain access to governmental records,
and such access is governed by the Tennessee Public Records Act. Memphis Publ’g Co. v. Cherokee
Children & Family Servs., Inc., 87 S.W.3d 67, 74 (Tenn. 2002); Cole v. Campbell, 968 S.W.2d 274,
275 (Tenn. 1998). Consequently, a court’s review of a request for records is governed by the
language of the Act. Tennessean v. Electric Power Bd. of Nashville, 979 S.W.2d 297, 305 (Tenn.
1998). The Act, Tenn. Code Ann. §§ 10-7-501 et seq., allows citizens to inspect certain public
records and provides in part that:
. . . all state, county and municipal records . . . 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 law.
Tenn. Code Ann. § 10-7-503.
In order to access public records, a citizen1 must either appear in person during normal
business hours at the location where the public records are housed or, if unable to appear in person,
the citizen may identify those documents sought by mail to the records custodian so that the records
custodian can copy and produce those documents without requiring an extensive search. The
custodian may charge a fee for each document that is meant to cover both copying the item and
delivering the copies. Waller v. Bryan, 16 S.W.3d 770, 774 (Tenn. Ct. App. 1999).
If a person is denied access to public records, the Act itself provides the remedy. Tenn. Code
Ann. § 10-7-505 provides:
(a) Any citizen of Tennessee who shall request the right of personal inspection of
any state, county or municipal records as provided in § 10-7-503, and whose request
1
The right to access public records is granted to citizens, and although that term is not expressly defined in the
Act, the Tennessee Supreme C ourt has held that a convicted felon has the same right of access to public records as any
other citizen. Cole, 968 S.W.2d at 276-77.
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has been in whole or in part denied by the official and/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.
The Act directs an aggrieved citizen to file a petition in the chancery court in the county
either where the records are located, or in the case of a state department, in the chancery court for
Davidson County in order to seek judicial review of the denial of access to public records. Further,
. . . 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.
Tenn. Code Ann. § 10-7-505(b) (emphasis added).
In accordance with the show cause language emphasized above, the Act specifically provides:
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.
Tenn. Code Ann. § 10-7-505(c).
In addition, the legislature has also directed that the section of the Act dealing with judicial
review of denials of access “be broadly construed so as to give the fullest possible public access to
public records.” Tenn. Code Ann. § 10-7-505(d).
The Act, therefore, provides not only the means for achieving access to public records, but
the remedy for the situation that arises when the governmental entity denies a request to produce the
records for whatever reason: a method for judicial review that is explicitly set forth by statute. The
Act also provides guidance to the courts in conducting such review.
II. Summary Judgment
Mr. Hickman filed a motion for summary judgment which the trial court denied based on the
existence of a material factual dispute as to whether the Board actually received the request for
public records by Mr. Hickman.
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The standards for reviewing summary judgments on appeal are well settled. Summary
judgments are proper in virtually any civil case that can be resolved on the basis of legal issues alone.
Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993);
Church v. Perales, 39 S.W.3d 149, 156 (Tenn. Ct. App. 2000). They are not, however, appropriate
when genuine disputes regarding material facts exist. Tenn. R. Civ. P. 56.04. Thus, a summary
judgment should be granted only when the undisputed facts, and the inferences reasonably drawn
from the undisputed facts, support one conclusion - that the party seeking the summary judgment is
entitled to a judgment as a matter of law. Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265,
269 (Tenn. 2001); Brown v. Birman Managed Care, Inc., 42 S.W.3d 62, 66 (Tenn. 2001); Goodloe
v. State, 36 S.W.3d 62, 65 (Tenn. 2001).
A party seeking summary judgment has the burden of demonstrating that its motion satisfies
the requirements of Rule 56, including its entitlement to judgment as a matter of law. Carvell v.
Bottoms, 900 S.W.2d 23, 25 (Tenn. 1995); Jones v. City of Johnson City, 917 S.W.2d 687, 689
(Tenn. Ct. App. 1995). When a party seeking summary judgment makes a properly supported
motion, the burden shifts to the nonmoving party to set forth specific facts which must be resolved
by the trier of fact. Byrd, 847 S.W.2d at 215. Summary judgment is not appropriate if the movant
cannot demonstrate his entitlement thereto as a matter of law. Penley v. Honda Motor Co., 31
S.W.3d 181, 183 (Tenn. 2000).
Under the Public Records Act, judicial review is available to a party whose request to inspect
public records has been denied. Tenn. Code Ann. § 10-7-505(a). The trial court found there was
a factual dispute as to whether Mr. Hickman’s request had been received by the Board and,
consequently, whether the Board had denied the request.
Mr. Hickman alleged that he sought information from the Board and that the Board did not
respond to his request after being given a reasonable time. In response, the Board submitted the
affidavit of Teresa Thomas indicating that no one at the Board ever received a request for public
records from Mr. Hickman. We agree with the trial court that there is a material dispute of fact as
to whether Mr. Hickman was denied access to public records.
Nonetheless, the Board became aware of the request through this litigation and stated it
would not have provided the requested material even if it had received the request. We consider that
response a denial of access. The Board has put at issue the basis for its refusal to provide Mr.
Hickman with the information he requested, and the Board has the burden of justifying
nondisclosure. Tenn. Code. Ann. § 10-7-505(c).
III. Irreparable Harm
The trial court indicated that even if Mr. Hickman’s request had been received and denied
by the Board, he was still not entitled to relief because he sought “relief in the nature of a mandatory
injunction” and he had not addressed or demonstrated the requirements for such an injunction,
specifically irreparable harm. We respectfully disagree with the trial court because we conclude that
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a citizen seeking access to government records must only meet the requirements set out in the Public
Records Act.
Under Tenn. Code Ann. § 10-7-505(a), a party whose request for access to public records has
been denied may petition the court for such access and “obtain judicial review of the actions taken
to deny the access.” Further, “Upon a judgment in favor of the petitioner, the court shall order that
the records be made available to the petitioner,” absent certain circumstances not here present. Tenn.
Code Ann. § 10-7-505(e).
Although the Act also gives the court the power to “exercise full injunctive remedies and
relief to secure the purposes and intentions of this section,” we find no requirement that a petitioner
meet the requirements for an injunction set out in Tenn. R. Civ. P. 65. If a citizen is denied access
to a public record, no additional “irreparable harm” must be shown. The legislature has established
as public policy the fullest possible access to public records and has determined that denial of access
is sufficient herein to warrant court action requiring disclosure. The Act provides that if the court
finds that access was improperly denied, (often a determination that the requested records are public
records), the court shall order that the records be made available. Consequently, the fact that Mr.
Hickman requested such an order does not impose an additional burden. Thus, the trial court applied
an incorrect standard to Mr. Hickman’s petition. We reverse the trial court’s dismissal of Mr.
Hickman’s action that was based upon his failure to demonstrate irreparable harm.
The trial court also stated, however, that Mr. Hickman was clearly entitled to any public
records and that he could “seek the documents, if they exist, by mail, provided that he clearly
identifies each file and each document that he wants copied and provided that he advance the costs
for such copies.” In essence, this statement was a declaration of Mr. Hickman’s rights under the Act,
as he had requested, but without a determination as to the Board’s obligation to produce any specific
record, and without an order to the Board to produce the records that met the court’s criteria.
IV. Mr. Hickman’s Request for Public Records
Mr. Hickman’s request stated:
I. I would like to be provided the names and TDOC numbers of all of those
concerned in section III; and be provided computer access for the information sought.
In the alternative, if such access is denied, then it would become the BOP’s burden
of providing copies with all the information sought.
II. I would further ask that I be provided a current copy of the ATS (Average Time
Served) chart as utilized by the Board of Paroles; and, a copy of the “Policy
Guidelines” as provided to the citizenry upon request.
III. Information sought:
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A. All class A, class B, and class C felonies where the inmate has been “certified
eligible” for parole from 1-1-92 through the present time.
B. Risk factor (points) calculation for all inmates in “A” above.
C. The record of institutional conduct for all inmates in “A” above.
D. The type of crime (and any prior crimes) of the inmates in “A” above.
E. Whether the inmates in “A” above have been previously paroled, and if so,
whether paroled on the same crime.
F. The number of inmates in “A” above that were denied parole as “High Risk.”
G. The number of inmates in “A” above that were denied parole for “seriousness of
the offense.”
H. the number and type of “violent” crimes in “A” above.
I. The number and type of “non-violent” crimes in “A” above.
J. For those inmates in “A” above, the percent of the sentence complete at the time
of release (violent and non-violent).
K. For those inmates in “A” above that were denied, the reason for denial, as stated
on their “written decision.”
L. The number of “first time offenders” for those inmates in “A” above.
M. The specific inmates that were “first time offenders” who were denied parole
because they were a: judge, attorney, doctor, gay, black, female, or any other “social
status” criteria.
N. Specifically the names and TDOC numbers of all persons convicted of theft over
$10,000 and theft over $60,000 between 1-1-92 and the present, where:
1. They were first time offenders.
2. Their Risk points were 14 or less.
3. Where their institutional conduct consisted of two “A” offenses, two “B” offenses,
or three “C” offenses or less, in the year immediately preceding their parole hearing.
4. The specific crime, and the sentence imposed.
5. Their prior record, if any.
6. Their prior release(s) on parole, if any.
7. Their SED date, and date of parole.
8. If they were denied for parole, the reason for denial, how long they were “put off,”
and those required to “flatten” and any particular reason stated.
V. The Board’s Justifications
As stated earlier, the Board has the burden of justifying a denial of access. In response to Mr.
Hickman’s motion for summary judgment, the Board argued: (1) some of its records were
confidential; (2) some of the information sought was not kept in the format requested; and (3) it was
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not required to do a manual search of its records and compile data for Mr. Hickman. It also argued
that complying with the request would be overly burdensome.2
With regard to the confidential records argument, the Board asserted in the trial court that
some of the information sought by Mr. Hickman was confidential, citing to and attaching a copy of
Tenn. Comp. R. & Regs. 1100-1-1-.14 entitled “Confidentiality of Parole and Clemency Records.”
Confidential records are not subject to disclosure under the Public Records Act, and a “confidential
public record” is defined as “any public record which has been designated confidential by statute.”
Tenn. Code Ann. § 10-7-301(2). The legislature has authorized the Board to “make rules, as to the
privacy of such records . . . and their use by others than the board and its staff.” Tenn. Code Ann.
§ 40-28-119(c). The reference “such records” is to those records described in subsection (a) of
Tenn. Code Ann. § 40-28-119, to-wit:
The board shall cause to be kept records which may include social, physical, mental,
psychiatric and criminal information for every inmate considered for or released,
under its supervision. . . . Such records shall contain reports of probation and parole
officers with relation to such probationers and parolees.
The Board’s rule identifies information considered confidential and not subject to release.3
Tenn. Comp. R. & Regs. 1100-1-1-.14. In its filings in the trial court, the Board did not specifically
identify those portions of Mr. Hickman’s request which involve confidential records. On appeal, the
Board has not reasserted its claim to confidentiality of records and, consequently, provides no
assistance in identifying specifically what information Mr. Hickman has requested that is protected
from release by the rule.
Obviously, the Board is not required to provide to Mr. Hickman any records that are made
confidential by a rule promulgated pursuant to a specific grant of statutory authority. However,
based upon the generality of the Board’s response at trial, and the lack of any mention on appeal, we
are unable to determine whether any of the information requested by Mr. Hickman is, in fact,
confidential. Consequently, we cannot review the validity of the Board’s justification based upon
its rule regarding confidentiality.
To the extent the Board is asserting that certain records contain confidential information, not
that the entire record itself is confidential, the Tennessee Supreme Court has touched upon the
obligation of a government agency to disclose the public portions of such record while deleting any
confidential information. See Tennessean, 979 S.W.2d at 302. While not adopting it as the law in
2
The memorandum in opposition to summary judgment stated, “Such a request, as the petitioner states in the
letter attached to the petition, of essentially all paro le-eligible inmates in the D epartment of Co rrection, would be clearly
onerous, o verly bu rdensome, time-co nsuming and expe nsive.”
3
In addition to o ther items, the Board considers confidential: “Parole Officers’ opinions and statements recorded
in the case file” and “stateme nts in opposition of a parolee by victims, families of victims, families of inmates; private
citizens who request confid entiality, and public officials wh o req uest co nfidentiality.”
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this state, the Court discussed and quoted a decision by the Kansas Supreme Court, State ex rel.
Stephan v. Harder, 230 Kan. 573, 641 P.2d 366 (1982). Regarding that opinion, our Supreme Court
stated:
The plaintiffs sought non-exempt medical information from the Secretary of Social
and Rehabilitative Services. The defendant asserted, and the testimony showed, that
the information sought was contained in the agency’s computer system, but was
combined with other information that contained confidential information. The
evidence also showed that a computer program could be designed to extract the non-
exempt material from the confidential information. The trial court ruled that the
agency had no duty to segregate the disclosable material, but the Kansas Supreme
Court reversed:
We hold that the [public records] act implies a duty upon the agency
to delete confidential and nondisclosable information from that which
may be disclosed, and thus to carry out the act’s purpose of making
available for public inspection all disclosable parts of the public
record. Were this not so, any record which an agency is required by
law to keep could be rendered inaccessible to public scrutiny by
including confidential material therein.
Tennessean, 979 S.W.2d at 303 (quoting State ex rel. Stephan, 230 Kan. at 583, 641 P.2d at 374).
The dispute in the Tennessean case did not involve a claim that portions of the requested
records were confidential, so our Supreme Court did not directly address an agency’s obligation to
delete confidential portions of an otherwise public record. However, we interpret the Court’s
opinion in the Tennessean case to imply that such an obligation may exist, at least where the
information is kept in a computer system and, therefore, the deletion can be accomplished
electronically.4 Because we do not know what of the requested information the Board claims is
confidential and whether that information is included in a computerized database or only available
in hard copy records, we cannot resolve the issue, and cannot determine if an issue exists which
requires resolution, based upon the record before us.
In addition to the confidentiality argument, the Board raised other reasons why it was not
required to comply with Mr. Hickman’s request. The factual basis for those reasons was set out in
the affidavit of Teresa Thomas, as follows:
. . . I have concluded that the information requested is not available in the manner he
requests. The Board maintains records of inmates by individual inmate number. In
compiling information concerning all inmates convicted of Class A, B, or C felonies
4
The com puterized nature o f the inform ation is critical to the Co urt’s decision in Tennessean, as is explained
later in this opinion.
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certified eligible for parole from January 1, 1992 through present, a special computer
run would have to be performed.
The other information requested would have to, in most instances, be manually
obtained. For example, Mr. Hickman asks for the Risk Factor in points for all of
those inmates certified as parole eligible from January 1, 1992 through present. This
information is only maintained on the guidelines form in an inmate’s individual file.
It is not placed in a computer. In order to find this information, the file of each
inmate would have to be pulled and the form would have to be reviewed to find the
individual inmate’s specific score.
Several of Mr. Hickman’s requests would have to be found, if at all, through a
manual search. . . .
Our analysis of these justifications again begins with the Public Records Act. A “public
record” is defined in the Act as “all documents, papers, letters, maps, books, photographs,
microfilms, electronic data processing files and output, films, sound recordings, or other material,
regardless of physical form or characteristics made or received pursuant to law or ordinance or in
connection with the transaction of official business by any governmental agency.” Tenn. Code Ann.
§ 10-7-301.
Thus, the proper test for determining whether a document or other information is a public
record is whether the record was made or received pursuant to law or ordinance in connection with
the transaction of official business. Griffin v. City of Knoxville, 821 S.W.2d 921, 924 (Tenn. 1991).
Application of this test may require an inquiry into the totality of the circumstances surrounding the
creation or receipt of the document or information. Id.
One issue raised herein by the Board’s response is traceable to the requirement that the record
be made or received. That is, the Board asserts that some of the information requested by Mr.
Hickman is simply not available in a record that the Board has made or received; the Board does not
maintain the requested information in a record as defined by the statute. In other words, the Board
essentially asserts that Mr. Hickman’s request is not for an existing record, but instead would require
the Board to create a new record by compiling the information from thousands of existing records.
In Tennessean, our Supreme Court considered a “creation of a new record” argument.
However, in that case, the Court determined that the requested information had been entered into a
computer system and, consequently, “once information is entered into a computer, a distinction
between information and record becomes to a large degree impractical.” 979 S.W.2d at 304. The
Court determined that because the records request did not require the governmental agency to
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“compile or collect statistics” or require an interpretation or analysis of data, the determinative
question was not about creation of a new record, but was “one of format and access.”5 Id.
“Under the facts” of that case, the governmental agency, Nashville Electric Service (“NES”),
was required to disclose the requested information. In our opinion, the facts leading to the Court’s
conclusion were: (1) although NES did not possess a single document containing the requested
information (the names, addresses, and telephone numbers of its customers), it did maintain the
separate pieces of information in its computer system, but not in the exact format requested;6 and (2)
the requested information could be produced by the governmental agency by having a computer
program written to extract the requested information and produce it in the requested format. The
agency maintained, and the requestor agreed, that it was entitled to require payment of the costs of
the efforts required to produce the information in the format requested. The Supreme Court agreed,
stating that the Public Records Act, at Tenn. Code Ann. § 10-7-506(a), specifically allowed an
agency to enforce reasonable rules “governing the making of such extracts, copies, photographs or
photostats.” 979 S.W.2d at 305. The Court held that the Act authorized the agency to require
payment for actual costs incurred in disclosing the requested records. Id.
The Act envisions that the requestor will personally appear to make the request and will be
given access to the public records requested. When personal appearance is not possible, a citizen
may request that copies of records be sent to him or her. However,
If a citizen can sufficiently identify the documents which he wishes to obtain copies
of so as to enable the custodian of the records to know which documents are to be
copied, the citizen’s personal presence before the record custodian is not required.
However, the records custodian is not required under the Public Records Act to make
the inspection for the citizen requesting the documents. The citizen, to be able to
obtain copies of those documents without making a personal inspection, must
5
In distinguishing cases relied upon by Nashville Electric Service, the Court stated:
The other case relied on by the defendant is George v. Record Custodian, 169 Wis. 2d 573, 485
N.W.2d 460 (Wis. Ct. App. 1992). There, an inmate asked for the number of claims received by the
Department of Justice from 1988-1990, the number of cases settled without litigation, and the number
of cases disallowed. The Wisconsin appellate court held that the records custodian was not required
under the public records act to “collect or compile statistics or create a reco rd for the be nefit of a
requester.” 4 85 N .W .2d at 462 .
In contrast to Seaton and George, The Tenn essean’s request did not require NES to compile or collect
statistics, nor did it require an explanation, interpretation, or analysis of information. NES did not
claim that the requested information was exempt from disclosure, nor did it contend that it lacked the
information.
Tennessean, 979 S.W.2d at 304.
6
The agency maintained a list of names and addresses. Telephone numbers, needed for service requests and
emergency contacts, were not kept on the same list or database.
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sufficiently identify those documents so that the records custodian can produce and
copy those documents without the requirement of a search by the records custodian.
The records custodian can require a charge or fee per copy that will cover both the
costs of producing the copies and delivering the copies. It is the opinion of this Court
that such was the intent of the Legislature.
Waller, 16 S.W.3d at 774.
Based upon the Supreme Court’s opinion in Tennessean, we conclude that the Board can be
required to produce nonconfidential information for Mr. Hickman that is contained in its computer
system. The fact that a “special computer run would have to be performed” does not preclude such
production; the Supreme Court has held the opposite. We are not certain what “a special computer
run” entails, and there is no evidence in the record to more fully explain it. However, also under
Tennessean, the Board can require that Mr. Hickman pay the costs of producing the information in
the format he requested, including the cost of programming the computer to compile and produce
the information. There is no information in the record before us regarding the potential cost.
In Ms. Thomas’s affidavit, the Board asserted that responses to “several” of Mr. Hickman’s
requests “would have to be found, if at all, through a manual search.” The affidavit provided one
specific example: the request for the Risk Factor in points for all of those inmates certified as parole
eligible from January 1, 1992, through present. The affidavit states, “This information is only
maintained on the guidelines form in an inmate’s individual file. It is not placed in a computer. In
order to find this information, the file of each inmate would have to be pulled and the form would
have to be reviewed to find the individual inmate’s specific score.”
Based upon Waller, we conclude that the Public Records Act does not require a governmental
entity to manually sort through records and compile information gained from those records. 16
S.W.3d at 774. A Public Records Act request is not a discovery request pursuant to litigation. A
citizen appearing in person could inspect the records and retrieve the information himself or herself.
While the inability to appear in person does not relieve the agency from the obligation to provide
requested records, there is nothing in the Act which would shift to the agency the burden of manually
compiling information from thousands of separate records into a new record. An agency has an
obligation, upon payment of reasonable costs, to copy and provide to a nonappearing requestor, those
documents or records that are sufficiently identified by the requestor, but has no obligation “to
review and search their records pursuant to a Public Records Act request,” Waller, 16 S.W.3d at
773, or to “compile or collect statistics.” Tennessean, 979 S.W.2d at 304. We find no language in
the Act that would require the Board to go through every parole eligible inmate’s file and retrieve
the Risk Factor for each so as to compile that information for Mr. Hickman.
On the other hand, if Mr. Hickman had requested a copy of the “guidelines form” referenced
in Ms. Thomas’s affidavit for each inmate certified as parole eligible from January 1, 1992, the
Board would be required to make those copies, if these documents are not confidential, and send
them to Mr. Hickman upon payment of reasonable costs. Although each document would have to
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be manually retrieved for copying, a similar effort would be required if a citizen appeared in person
and requested access to those documents.7 Pulling files for review in person does not differ from
pulling files to make copies.8
Finally, the Board argued that Mr. Hickman must comply with the reasonable procedures
established by the Board for requesting documents:
If a person cannot, or chooses not to, come to the place where the records are kept,
the person may contact the Board and request copies of the records. The person
should describe the records sought and payment of the $0.20 is required before the
records are forwarded to the requesting person. There may also be a shipping charge
if the records are voluminous.
The Board stated that Mr. Hickman will have to make a request that identifies the records
sought with particularity, and which are not deemed confidential pursuant to Tenn. Code Ann. § 40-
28-119 and Rule 1100-1-1-.14 of the Board of Probation and Parole, and prepay the costs of copying
and shipping. The trial court made a similar statement regarding Mr. Hickman’s right to make
another request.
We do not disagree that a request should identify the records which the requestor wants
copies of. We cannot determine, however, exactly what fatal lack of specificity exists in Mr.
Hickman’s request. The Board has not told us or the trial court that it is unable to identify the
records requested. Mr. Hickman’s request is generally phrased in terms of information he seeks
rather than specific documents, and he asks for information regarding a described class of inmates
rather than identifying each inmate. Based on the record before us, however, we are not convinced,
that this generality provides a sufficient justification for denial of access. In the Tennessean case,
for example, the request was simply for the names, addresses, and telephone numbers of all the
customers of NES. The requestor did not identify or request a specific document containing that
information or specify all the customers by name.
The Board has not asserted that it does not have records containing the requested information
or that it cannot identify the records requested from the general nature of the request. The Board’s
obligation to show cause why it is denying access includes a requirement that the Board respond
specifically to each request or, in other words, show cause why it is denying access to each requested
item so that the court can adequately review its justification. For example, while we agree that the
Board is not required to provide access to confidential records, it has not identified those portions
7
The Act provid es no basis for denying access to record s because granting su ch access wo uld be “clearly
onerous, o verly bu rdensome, time-co nsuming and expe nsive.”
8
Ob viously, the time and effort involved in making copies is additional to that required to retrieve files. The
copy cost charged to citizens making a request for access in person, as well as a c itizen making a request by mail,
presu mab ly include s this add itional co st.
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of Mr. Hickman’s request which would require disclosure of confidential records. Thus, neither the
trial court nor this court can determine what requests may be justifiably denied on that basis.
Finally, we also agree that the Board can require Mr. Hickman to pay in advance the
reasonable costs of producing or delivering copies of the records, including “special computer run”
costs, as discussed above.9 However, according to the record before us, the Board has not calculated
what those costs would be or demanded a specific payment from Mr. Hickman as a precondition to
supplying the records.
VI. Conclusion
The trial court’s dismissal of this action is reversed because relief under the Public Records
Act requires only a showing of entitlement to the records and does not require a finding of
irreparable harm. The case is remanded to the trial court for further proceedings that may be
necessary to determine whether the Board has met its burden of justifying denial of access as to any
part or all of Mr. Hickman’s request. Such a determination will likely require that the Board provide
more specific explanation of its justifications.
Costs of this appeal are taxed to the appellee, the Tennessee Board of Probation and Parole.
___________________________________
PATRICIA J. COTTRELL, JUDGE
9
W e note that although M r. Hickman originally sought an order in the trial court that the Board bear the co st
of producing the information he sought, he do es not specifically assert that argument on ap peal and has essentially
acknow ledged that he would be responsible for paying for the reaso nable costs of such copies.
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