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, (continue reading at NashvilleScene)