Tennessee is in the minority with a residency requirement for its open-records law. Should that change?

Stand atop Rock City on Lookout Mountain, and the marker says you can see seven states — though you may have to squint pretty hard to make out two of them. It's one of Tennessee's quirks: The long, narrow shape creates borders with eight other states, tying it with neighbor Missouri for the most in the country.

For most people, this fact is simply the answer to a trivia question. But for others, it's more problematic. Because of its geography, three of Tennessee's largest metro areas spill into other states. So people who, say, work in Memphis but live across the river in Arkansas have no guaranteed access to records in the city where they work, because the state's open-records law does not provide it.

It's not just border residents who are getting screwed. Out-of-state students who live on campus at any of the state's public universities have no right to records about their schools if they haven't changed their residency to Tennessee via a state driver's license. Researchers in other states seeking information for database comparisons are out of luck. And journalists at out-of-state outlets like The Washington Post are turned down when asking for even the most basic information.

In the 2013 case McBurney v. Young, the U.S. Supreme Court upheld Virginia's Freedom of Information Act, which, like Tennessee's, limits access to residents. In the unanimous decision, Justice Samuel Alito wrote, "the right to access public information is not a 'fundamental' privilege or immunity of citizenship."

But despite the ruling, Virginia and Tennessee's laws actually are not in line with the rest of the country. Forty-five states and the District of Columbia open their records to residents and non-residents alike, according to the most recent data available from the Reporters Committee for Freedom of the Press. And even Virginia's law has a media exemption.  

"There doesn't seem to be any reason to deny the records except that they can," says Deborah Fisher, executive director of the Tennessee Coalition for Open Government. "And it does seem to ignore that we benefit from multi-state information. Imagine a researcher is doing a state-by-state comparison and has to leave Tennessee out because they can't get information from the state."

Of course, this doesn't happen. Anyone who needs Tennessee records will just find a proxy to request them. Fisher gets calls from out-of-state journalists about the issue all the time. (I have filled requests for multiple journalists in other states and have had the same done for me.)

"The restriction is silly, basically," says Adam Marshall, an attorney who is also a legal fellow with RCFP. He points out that although New Jersey has a law with similar residency requirements as Tennessee, that state's attorney general has instructed that as the law does not prohibit access to out-of-state residents, such requests should generally be filled.

Tennessee's law also does not prohibit agencies from providing records to non-residents: "All state, county and municipal records shall, at all times during business hours, which for public hospitals shall be during the business hours of their administrative offices, be open for personal inspection by any citizen of this state, and those in charge of the records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law."

Some agencies, like the city of Nashville and the city of Knoxville, have chosen to fill requests from out-of-state journalists, at least on a case-by-case basis. But others, like Memphis, Chattanooga and Bristol — the latter literally divided into two cities by the state line — refuse to do so.

"It's just not common sense," says Fisher. "It seems like you spend more time arguing about it than handing it over and promoting transparency. ... It really promotes this attitude that, yes, these are public records, but we're not going to give them to you."

The general argument against changing Tennessee's law is financial. As Alito noted in his opinion in McBurney v. Young, Virginia's citizens "foot the bill for the fixed costs underlying recordkeeping." While many border residents pay plenty of Tennessee sales and hospitality taxes, journalists or academics from other parts of the country do not. But that still shouldn't be a reason to restrict access, say advocates.

"I understand the argument theoretically, but how much does it cost to copy a few records?" says Marshall. Fisher points out, "Most of the time the people for out-of-state are going to be charged for them — they're paying for copies, they're paying for labor."

Ann V. Butterworth, the open records counsel for the state, emphasizes that state law "does not forbid providing access to others."

"The office encourages communities to be consistent and open in their practices," Butterworth says. When asked how consistent it is that two of the state's largest cities fulfill out-of-state requests and the other two don't, she replies, "That's not a matter for my office to decide; that's a matter for the General Assembly to decide."

Tony Gonzalez, the incoming president of the Middle Tennessee chapter of the Society of Professional Journalists, says that although he and many journalists he know have filled records requests for out-of-state journalists, there has yet to be a push for changing the law.

"If you live here, there's no problem, and if you're a journalist elsewhere, you probably just don't deal with it enough to make it a thing," Gonzalez says. "But I think it could be a huge burden for someone to repeatedly run into that, doing some kind of serious investigation."

And that's why, ultimately, either the law or the enforcement of it needs to change, says Marshall.

"There are so many issues that a state can make that affect people beyond its borders, and they have an incredible issue in knowing what the state is doing," says Marshall. "Reporters who act on behalf of the public — they're denied access for some arbitrary reason, and consequently their readers are denied important information. It's a frustrating state of affairs, and one that is not really warranted."

Email editor@nashvillescene.com

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