The Tennessee Supreme Court has proposed changing Rule 34 “Policies and Guidelines Regarding Appellate Judicial Records,” which defines certain court records not open for inspection, such as unpublished drafts of judicial orders and opinions, for appellate courts.
The changes would broaden the rule to apply to records maintained by the “clerks of the inferior courts” and add a new exemption for any records that “potentially undermine the inherent constitutional powers granted to the court…”
The lawyers also questioned the vagueness of part of the rule’s current language, and one organization requested that the Supreme Court appoint a special committee for a comprehensive review of Rule 34 and the law regarding the public’s right to inspect court records.
The Tennessee Supreme Court proposed the rule changes in February and solicited comments from judges, lawyers, interested organizations and the public. Comments were filed in late March.
Among those responding were the Tennessee Bar Association through its communications law section, the Knoxville Bar Association, attorney Rick Hollow and the Tennessee Association of Broadcasters.
“Assuming that it would be lawful to do so, trial courts should not be authorized to promulgate further local exceptions to the access requirements of the Tennessee Public Records Act, or to diminish the presumptions of access that exist under constitutional law and common law,” wrote the lawyers for the Tennessee Bar Association, which included John Williams and Robb Harvey, chair and vice chair, respectively, of the communications law section.
“The proposed language appears to create the possibility of a patchwork of exemptions throughout the State, some of which may run afoul of existing constitutional, common law and statutory protections.”
Section 2B under Rule 34 lists eight types of court records that can be held confidential. One change would expand documents exempt from those “prepared by a judge as part of the judicial decision making process” to those prepared by the judge or court staff as part of the court’s “judicial or administrative decision-making process.”
Another change adds to an exception that the lawyers noted was already too broad and vague. This portion, with the proposed changes underlined, reads:
“Any other written or electronic record the disclosure of which would frustrate or interfere with the judicial function of the courts or potentially undermine the inherent constitutional powers granted to the court and recognized in Tenn. Code Ann. 16-3-503.”
“The Tennessee Bar Association favors, when possible, clear guidance to courts, clerks and citizens concerning access to court records, and thus about the scope and limits of exceptions to access. While the existing language may not be a model of precision, the addition of the proposed language would make matters worse, rather than better, making the boundaries of the exception less clear,” they wrote.
Hollow, who is legal counsel for the Tennessee Press Association and has represented numerous media outlets including the Knoxville News Sentinel, said the existing language already had problems.
“The provisions of Section 2(B)(viii) are, in my opinion, vague to the point of potential constitutional infirmity,” Hollow wrote in his comments.
He said the terms “frustrate” and “interfere” under the expansion would “…provide a basis for individual clerks or other personnel to deny a request based on subjective feelings. In other words, this appears to be an attempt, perhaps inadvertent, to create a window of opportunity for denial of any request based upon the subjective frame of mind of the custodian of the records at the point in time when the request is made. The lack of a definite, clearly articulated objective standard is disturbing.”
Likewise, Doug Pierce of King & Ballow and counsel for Tennessee Association of Broadcasters, opposed the new portion as being too broad and “too vague to inform anyone as to what is or is not exempt.”
Pierce wrote the new language would be inconsistent with the Tennessee Supreme Court’s recognition of how the Tennessee Public Records Act is patterned, which has many narrow specific exemptions rather than a few broadly worded exemptions.
“The benefit of having specific exemptions is so that the average citizens will know what he or she may access under the Public Records Act. The broader an exemption is, the less notice provided to the public to inform them what may or may not be exempt,” Pierce wrote.
Adopting a broad exception would “essentially give Tennessee citizens the ‘worst of both worlds,’ i.e., a plethora of specific exemptions to review, plus a broad exemption subject to uncertain future interpretations.”
“…In the context of open courts the U.S. Supreme Court has observed, ‘People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.’…Likewise, having specific, not so broad and vague exemptions, furthers public trust in government in general, and in our courts in particular.”
Hollow also pointed out potential problems with the expansion of the exemption to lower courts, which could include juvenile courts, general sessions courts, domestic relations courts, circuit courts, chancery courts, criminal courts and others, without a process for inspection of records or an appeal of a denial. The rule outlines such processes for the appellate courts only.
He also suggested examining the requirement that requestors state a reason for viewing records.
“It is my belief that requiring a citizen of Tennessee, who is applying for access to a presumptively open public record, to state a basis or reason for the request is a form of indirect intimidation and could function as a deterrent to the citizen in pursuing the request,” Hollow wrote.
The Tennessee Bar Association also said the changes do not “highlight the exacting scrutiny that is required when parties or courts attempt to seal judicial materials from public scrutiny.”
“It also appears to imply that parties have some authority to submit materials under seal without court approval.
The Knoxville Bar Association recommended that the Supreme Court appoint a special committee to study and report on the ramifications of the proposed rule change and to study and report on existing law regarding access to court records, saying the task of “restating or reshaping the law for the inspection of judicial records warrants an exhaustive and thorough analysis.”