Are applications for the chancery court clerk and master position public records, and can the court seal them to keep them confidential?

Subject

Opinion No. 14-59, Inspection Under Public Records Act of Applications for Position of Clerk and Master, May 30, 2014

Plain-English summary

Chancellors W. Frank Brown and Jeffrey M. Atherton of the 11th Judicial District asked the AG (1) whether applications (letters and resumes) for the position of chancery court clerk and master are subject to inspection under the Tennessee Public Records Act and (2) whether the chancery court can prevent disclosure by sealing them. The AG said yes to (1) and no to (2).

The applications question turned on the broad definition of "public record" in Tenn. Code Ann. § 10-7-503(a)(1)(A): all documents, papers, letters, etc., "made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency." Article VI, § 13 of the Tennessee Constitution and § 18-5-101 give chancellors the power to appoint a clerk and master. That appointment is "official business" of the chancery court. While the chancellors are not required to solicit or accept applications, once they receive them, those documents are "in connection with the transaction of official business" and are public records.

The AG anchored this in Bd. of Educ. of Memphis City Schs. v. Memphis Publ'g Co., 585 S.W.2d 629 (Tenn. Ct. App. 1979), which held that applications for the position of city school superintendent were public records. The Public Records Act applies to the judiciary (Memphis Publ'g Co. v. City of Memphis, 871 S.W.2d 681, 684 (Tenn. 1994)) and to county offices (§ 10-7-503(a)(2)(A); § 10-7-403). It also cannot be evaded by contractually delegating responsibility (§ 10-7-503(a)(6)). A footnote noted that personal information (phone numbers, email addresses) on applications is confidential and must be redacted under § 10-7-504(f). Tenn. Sup. Ct. R. 34(1) recognizes appellate court records as inspectable absent seal or protective order. A second footnote distinguished filed-in-court records from agency records (the latter accessible "at any time unless specifically excepted").

The sealing question turned on jurisdiction. The Court of Appeals in Adams v. The Tennessean, 2002 WL 192575 (Tenn. Ct. App. Feb. 7, 2002), addressed an analogous case where the City of Lebanon tried to use a circuit-court protective order to shield a settlement agreement from a public-records request. The Court of Appeals held that because no action was pending before the circuit court, the court lacked jurisdiction to issue the protective order. A bare motion for protective order is not a complaint and does not initiate an action. Applied here, in the absence of an action pending before the chancery court that would invoke its jurisdiction, the court cannot seal application documents to evade the Public Records Act.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is a "public record" in Tennessee?

Per § 10-7-503(a)(1)(A): "all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency." It is broad on purpose.

Why are applications part of "official business"?

Because chancellors are constitutionally required to appoint a clerk and master (Tenn. Const. art. VI, § 13), with the statutory term of six years (§ 18-5-101). Appointment is an exercise of official business. Documents received in furtherance of that appointment process are received "in connection with the transaction of official business."

What personal information has to be redacted?

The opinion points to § 10-7-504(f) and specifically calls out telephone numbers and email addresses as the kind of personal information that is confidential and must be redacted. Redacting that information does not change the document's status: it remains a public record.

Can applicants submit applications under seal?

No. Under the opinion, the chancery court has no jurisdiction to seal an applicant's submission absent a pending action before the court, with Adams as the doctrinal source. The opinion does not describe any route by which an applicant could keep a submitted application confidential.

What is the difference between a court record and an agency record?

Memphis Publ'g Co. v. City of Memphis distinguished records "filed in court" (court records, subject to specific judicial confidentiality rules and Supreme Court rules) from "agency records" held by judicial offices in their administrative capacity. Applications for clerk and master are not "filed in court" because the chancery court receives them in its appointing, administrative capacity, not as part of any litigation.

Could the chancery court receive applications in confidence by promise to applicants?

§ 10-7-503(a)(6) prohibits a governmental entity from avoiding disclosure obligations by contractually delegating responsibility to a private entity. The same principle would prevent the chancery court from contracting around disclosure. An informal promise of confidentiality cannot create a public-records exemption.

What if there is an ongoing court action involving an applicant?

That changes the jurisdictional analysis. A court with an active case before it has jurisdiction to issue protective orders within that case. The AG opinion is careful to say "in the absence of an action pending before the court"; the rule turns on whether there is a vehicle for jurisdiction to attach.

Background and statutory framework

The Tennessee Public Records Act (§§ 10-7-503 to -515) is one of the broader state open-records regimes in the country. Its breadth comes from § 10-7-503(a)(1)(A)'s definition of "public records" and § 10-7-503(a)(2)(A)'s requirement that records be open during business hours for inspection by any citizen. Exemptions exist but are construed narrowly.

The application of the TPRA to the judiciary was confirmed by the Tennessee Supreme Court in Memphis Publ'g Co. v. City of Memphis. The Court drew a distinction between filed court records (governed by court confidentiality rules) and agency-style records held by judicial offices in administrative capacities. Personnel-adjacent records (applications, evaluations, etc.) held by judicial officers in their administrative capacity fall in the agency-record category.

The sealing-jurisdiction point traces to Adams v. The Tennessean and the basic civil-procedure rule that a court's jurisdiction must be invoked by a properly filed action. A protective-order motion not tied to an active case does not invoke jurisdiction. The chancellors' question implicitly asked whether they could solve a public-records problem by judicial fiat; the answer is no.

Citations

• Tenn. Const. art. VI, § 13 (chancellors appoint clerks and masters)
• Tenn. Code Ann. § 18-5-101 (six-year term for clerks and masters)
• Tenn. Code Ann. § 10-7-403 (county public records definition)
• Tenn. Code Ann. § 10-7-503(a)(1)(A) (broad definition of public records)
• Tenn. Code Ann. § 10-7-503(a)(2)(A) (open during business hours for inspection)
• Tenn. Code Ann. § 10-7-503(a)(6) (no contractual evasion of disclosure)
• Tenn. Code Ann. § 10-7-504(f) (redaction of certain personal information)
• Tenn. Sup. Ct. R. 34(1) (inspection of appellate court records)
• Bd. of Educ. of Memphis City Schs. v. Memphis Publ'g Co., 585 S.W.2d 629 (Tenn. Ct. App. 1979) (Tennessee Court of Appeals; school superintendent applications public records)
• Memphis Publ'g Co. v. City of Memphis, 871 S.W.2d 681 (Tenn. 1994) (Tennessee Supreme Court; TPRA applies to judiciary; court records vs. agency records distinction)
• Adams v. The Tennessean, No. M2001-00662-COA-R3-CV, 2002 WL 192575 (Tenn. Ct. App. Feb. 7, 2002) (Tennessee Court of Appeals; no jurisdiction to seal absent pending action)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-059.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
May 30, 2014
Opinion No. 14-59
Inspection Under Public Records Act of Applications for Position of Clerk and Master

QUESTIONS

1. Are applications (consisting of letters and resumes) for the position of chancery court clerk and master subject to inspection under the Public Records Act, Tenn. Code Ann. § 10-7-503(a)?

2. If such applications are public records, may the chancery court prevent their disclosure by placing them under seal?

OPINIONS

1. Yes. Applications for the position of chancery court clerk and master are public records.

2. No. Unless there is an action pending before the court, the chancery court has no jurisdiction to issue an order sealing application documents for the position of clerk and master.

ANALYSIS

"All state, county and municipal records shall, at all times during business hours, be open for personal inspection by any citizen of this state, . . . ." Tenn. Code Ann. § 10-7-503(a)(2)(A). Tenn. Code Ann. § 10-7-503(a)(1)(A) defines "public records" as follows:

all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency (emphasis added).

Art. VI, § 13, of the Tennessee Constitution provides that "Chancellors shall appoint their clerks and masters, who shall hold their offices for six years." See Tenn. Code Ann. § 18-5-101. Pursuant to these constitutional and statutory provisions, the appointment of a clerk and master is part of the "official business" of the chancellor(s) of a chancery court. Consequently, while neither Art. VI, § 13 nor Tenn. Code Ann. § 18-5-101 requires chancellors to solicit or receive documents applying for or inquiring into the appointment of the clerk and master, to the extent that any such records have been received, they have been received "in connection with the transaction of official business" of the chancellors and are thus public records subject to inspection. See Bd. of Educ. of Memphis City Schs. v. Memphis Publ'g Co., 585 S.W.2d 629 (Tenn. Ct. App. 1979) (holding that applications for position of city school superintendent were public records subject to inspection).

It matters not whether such applications are received by the chancellors themselves or by the office of the clerk and master. The Public Records Act applies to the judiciary, see Memphis Publ'g Co. v. City of Memphis, 871 S.W.2d 681, 684 (Tenn. 1994) ("traditional public records" include court records), and it applies to county offices, see Tenn. Code Ann. § 10-7-503(a)(2)(A); see also Tenn. Code Ann. § 10-7-403 ("public records" within the county means "[a]ll documents, papers, records, books, and books of account in all county offices"). Furthermore, the Public Records Act provides that a governmental entity is prohibited from avoiding its disclosure obligations by contractually delegating its responsibility to a private entity. Tenn. Code Ann. § 10-7-503(a)(6).

Certain personal information that such applications might be expected to include, such as telephone numbers and email addresses, is confidential and must be redacted under Tenn. Code Ann. § 10-7-504(f).

See also Tenn. Sup. Ct. R. 34(1) ("the public has the right to inspect public records maintained by the clerk of the appellate courts unless the record has been submitted under seal or is the subject of a protective order"). Court records, by definition, are those that have been filed in court. See Memphis Publ'g Co., 871 S.W.2d at 687. Applications for the position of clerk and master are not filed in court but would be received by the court in its administrative, appointing capacity and thus would be more akin to "agency records," which are "available to apprise the public about the goings-on of its governmental bodies" and "are accessible at any time unless specifically excepted." Id. at 687-88.

2. Having received applications for the position of chancery court clerk and master, the court may not order the records sealed in order to prevent their disclosure. The Court of Appeals addressed a similar situation in Adams v. The Tennessean, No. M2001-00662-COA-R3-CV, 2002 WL 192575 (Tenn. Ct. App. Feb. 7, 2002), in which the City of Lebanon had entered into a settlement agreement with a private party that contained a confidentiality provision. After a public-records request for inspection of the agreement was made and declined, the City secured a protective order from the circuit court. Id. at 1. On appeal, the Court of Appeals held that because there was no action pending before the court, the circuit court had acted without jurisdiction in issuing the protective order sealing the settlement agreement. Id. at 4. The court further ruled that the City's filing of the motion for a protective order was not a complaint and thus did not initiate an action for the purpose of giving the circuit court jurisdiction. Id. Under Adams, therefore, in the absence of any pending action that would give a chancery court jurisdiction to seal application documents for the position of clerk and master, such records may not be sealed.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable W. Frank Brown
The Honorable Jeffrey M. Atherton
Chancellors, 11th Judicial District
Room 311 County Courthouse
Chattanooga, Tennessee 37402