(The Center Square) – Tennessee’s open records aren’t open to everybody, and the state Attorney General’s Office wants to keep it that way.
The office of Jonathan Skrmetti has intervened in a federal First Amendment lawsuit to defend the constitutionality of the Tennessee Public Records Act – specifically its language allowing government agencies to withhold records from non-Tennessee residents.
The law says public records are “open for personal inspection by any citizen of this state,” and allows government agencies to check for proof of residency before turning anything over.
The Tennessee Public Records Act “is a service provided to Tennesseans so that they may hold Tennessee government officials accountable,” the attorney general’s office argued in court filing this month in Volokh v. Williamson County Archives & Museum. “The citizenship requirement ensures Tennesseans – who foot the bill for recordkeeping – are the primary beneficiaries under the TPRA.”
That position puts Tennessee in a minority. It’s one of just five U.S. states whose public access laws discriminate against the rest of the nation, allowing city, county and state agencies to withhold records if the request came from someone living outside state borders.
Other states with similar laws, or that interpret their laws that way, are Alabama, Arkansas, Delaware and Virginia, according to Right On Transparency, a coalition for open government reform that opposes the policies.
Jeffrey Roberts, board president of the National Freedom of Information Coalition, said the bans block journalists doing multi-state research and border town residents seeking records across state lines. The laws can force record-seekers to find someone inside the state willing to act as a proxy, he said.
“These barriers seem pretty unreasonable,” Roberts said. “What’s the point of making you jump through these extra hoops, by finding someone else to do it for you?”
The laws can also block taxpayers throughout the country from seeing how their own money is spent when the states’ schools, healthcare, roads, bridges and other programs get federal funds.
Three of the states with residency requirements, Alabama, Arkansas and Virginia, take in more federal tax dollars than they pay out, with Virginians having the largest gap taking in about $79 billion more than they pay to the federal government, according to an analysis of 2023 tax data by USAFacts.
Tennessee, on the contrary, sent about $4 billion more to the federal government than it took in that year, the analysis found.
There’s currently no momentum among Tennessee lawmakers to change the public records statute, according to Deborah Fisher, executive director of the Tennessee Coalition for Open Government.
“None of their constituents live out of state, obviously,” she said. “So it’s very hard for them to advocate for a law change for something that doesn’t help their constituents.”
So if you request public documents there, expect to be asked to show ID. If your driver’s license doesn’t say “Volunteer State,” expect to be shut down.
It happened to University of California law professor Eugene Volokh, who got rejected while researching a recent court case involving a city commissioner who accused a critic of stalking her. Through an assistant, Volokh requested court records from Williamson County Circuit Court. The clerk’s office referred him to the Williamson County Archives and Museum.
The archives director told Volokh’s assistant in an email, “Without proof of Tennessee citizenship, your public records request is denied.”
“I was unaware of this limitation in Tennessee,” Volokh told The Center Square. “I didn’t realize that Tennessee or any other state denied access to court records to out-of-state residents.”
Volokh, a First Amendment scholar who hosts a podcast called “Free Speech Unmuted,” filed suit in federal court against the museum, its director, the county Circuit Court, and Circuit Court clerk. He says they violated his First Amendment right to access judicial records and the Constitution’s Privileges and Immunities Clause by treating him differently because he lives in California.
Speaking with The Center Square, Volokh made a distinction between court records and other records of government operations, and said he’s not trying to upend Tennessee’s law on the latter.
A big reason, he said, is that in 2013 the U.S. Supreme Court upheld Virginia’s law barring out-of-state residents from accessing public records, ruling that the commonwealth had no constitutional obligation to accommodate out-of-state residents.
“I’m not going to fight the U.S. Supreme Court on this,” Volokh said. “They’ve made their decision. That’s the law.”
The decision by Justice Samuel Alito also noted that Virginia’s law has no such ban on non-Virginians obtaining judicial records.
“When it comes to court records,” Volokh said, “I say I have a First Amendment right of access to it. So I am indeed saying this law is unconstitutional as applied to these particular records.”
The Center Square was unsuccessful prior to publication getting comment from Skrmetti’s office about Volokh’s case.
In this month’s court filing, the attorney general’s office said the complaint is moot, because Volokh has the records now.
Volokh said the defendants turned over the court documents he wanted after he filed the lawsuit, but he’s pressing forward, since there’s no guarantee they won’t withhold court documents that way again.
