Changes to Tennessee Court Records Exemptions Raise Concerns

NASHVILLE, Tenn. (CN) – Tennessee attorneys say proposed changes to a rule shielding certain court records from the public, such as unpublished drafts of rulings and notes from judges, are too broad and unclear as to which records the public is entitled to access.

Tennessee Supreme Court Rule 34 currently applies only to appeals courts and stipulates that certain records like unpublished drafts of judicial orders and opinions are not available to the public.

The proposed changes would apply the rule to all lower courts in the state, including circuit, chancery, criminal, juvenile, domestic relations and general sessions courts.

Other records barred from release by Rule 34 include copies of court documents furnished to judges for their personal use, judge’s notes that are not part of case records, internal case management information, and documents that would interfere with the judicial function of the courts if released.

The Tennessee Supreme Court accepted written public comments on the proposed changes through the end of March. It published the comments it received, which came from the Tennessee Bar Association and numerous law firms.

The Tennessee Association of Broadcasters, through its attorneys with King & Ballow in Nashville, said it is concerned with an “especially troubling” new section in the proposed rule change barring disclosure of records that would “frustrate or interfere with the judicial function of the courts or potentially undermine the inherent constitutional power granted to the court.”

The coalition of radio and TV broadcast stations says the new section is too vague and would be subject to “uncertain future interpretations.”

“The benefit of having specific exemptions is so that the average citizen will know what he or she may access under the Public Records Act,” the group said. “The broader an exemption is, the less notice provided to the public to inform them what may or may not be exempt.”

Similarly, the state bar said some of the new language in the proposed rule change is “vague and overly broad.”

“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,” it said.

The TBA also said that “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.”

The Knoxville Bar Association wrote separately to request to appointment of a special committee to study the ramifications of the proposed change.

“The task of restating or shaping the law for the inspection of judicial records warrants an exhaustive and thorough analysis,” the KBA said.

It is unclear when the Tennessee Supreme Court will decide whether to adopt the revised Rule 34.

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