Deborah Fisher – Memphis Flyer

For two and a half years, the City of Memphis has sent journalist Marc Perrusquia perfunctory communications that it is still reviewing and considering his records request, each time pushing the date for its response down the road. Perrusquia asked for the audits and evaluations of a Memphis police program that provides non-disciplinary intervention when police officers exhibit behavior and performance problems. The city’s policy and procedure manual requires an audit of the program every six months to evaluate the outcomes of supervisory interventions and the quality of reviews. Quarterly reports are also required.

Perrusquia, a journalist in Memphis for more than 30 years, asked for five years of the audits and evaluations on December 6, 2020. If an audit is done every six months in compliance with the city’s policy, that’s 10 audits. However, the city stonewalled his request, contacting him 41 times extending the “time necessary” to complete it. One time, the city told him that the responsive documents were with the city attorney for review. Then the next month, the city said it had not yet determined that records responsive to his request existed. Now Perrusquia has filed a lawsuit against the city over the delays, saying they amount to a constructive denial of his public records request. His attorney is Paul McAdoo with the Reporters Committee for Freedom of the Press and represents journalists in Tennessee as part of the Reporters Committee Local Legal Initiative.

The Tennessee Public Records Act (TPRA) outlines how government entities are required to respond to a public records request in T.C.A. § 10-7-503 (a)(2)(B):

“The custodian of a public record or the custodian’s designee shall promptly make available for inspection any public record not specifically exempt from disclosure. In the event it is not practicable for the record to be promptly available for inspection, the custodian shall, within seven (7) business days: (i) Make the public record requested available to the requestor; (ii) Deny the request in writing or by completing a records request response form developed by the office of open records counsel. The response shall include the basis for the denial; or (iii) Furnish the requester in writing, or by completing a records request response form developed by the office of open records counsel, the time reasonably necessary to produce the record or information.”

Perrusquia’s lawsuit says the city’s “chronic delay is a violation of the TPRA’s requirement that non-exempt public records be made ‘promptly’ available to the requester.” He also takes aim with the city’s multiple extensions of “the time reasonably necessary to produce the record or information.” “Mr. Perrusquia’s attempts to obtain these public records without filing a petition with this Court have been unsuccessful. It is therefore necessary to bring this action for access and judicial review,” the lawsuit says.

The lawsuit aims at a problem that confounds many journalists and others in Tennessee who request public records: A government entity that gives an estimate on when records will be available, then keeps extending the time over and over. Or, as in Perrusquia’s case: A government that never gives a time estimate and just keeps sending a pro forma letter that it is still reviewing the request and it will let you know later.

In my work as executive director of Tennessee Coalition for Open Government, I’ve often seen denial letters to journalists and citizens with this phrase: “The office is still in the process of retrieving, reviewing, and/or redacting the requested records,” with a note that the requester will hear back in another 30 days. The 30 days come, and the journalist gets the same response. Or they get no response, as if someone forgot to send out the letter again. On the outside, it feels like nothing is being done on your request for records and that maybe no one has even looked at it.

The problem with delays has been acute in Memphis for years. In August 2019, the Memphis Business Journal produced an investigative report about the city’s responses to public records requests. It documented a request it made on December 6, 2017. It was fulfilled a year later, but only after the editor of the newspaper was meeting with a high-level staffer about another matter and mentioned the delayed request. After he did, the staffer promised to look into it, and within three days the city fulfilled the request.

The city responded in the story, saying they initially thought they might have a staffing issue, either needing more people or more training of people. But later they told the newspaper they had a better handle on the situation and had updated its policy from a first-in/first-out to a rolling request system. “Under the new process, rather than letting one request hold up the queue just because it was received first, custodians will try to fill the easy requests quickly and fill large requests in sections.” That was 2019.

No matter the processes employed by government entities, Perrusquia’s lawsuit may be the first in Tennessee that has taken aim at unusual and inexplicable delays. It’s notable that he is asking for records that go to the heart of questions about police oversight in Memphis. His request was made in December 2020. In January 2023, Tyre Nichols was pulled over by police for what they said was reckless driving, then beat to such a pulp that he later died. Much of it was caught on body camera and a street camera. The police officers directly involved have been relieved of duty.

The audits of the city’s police program that seeks to intervene in behavior problems of police should have been released quickly, back in 2021. What do they show? Perhaps this lawsuit will shake them loose and, at the same time, push back on the pattern of delays that undermine transparency in government.

The case has been assigned to Shelby County Chancellor Melanie Taylor Jefferson.

Deborah Fisher is executive director of Tennessee Coalition for Open Government. Previously she spent 25 years in the news industry as a journalist.

In late April, the city of Memphis abruptly changed course and shut down access to records that show how the city-owned animal shelter treats the dogs and cats in its care. The map to reach this decision is familiar to those of us in the public records community and sobering to anyone who wants government to be open and accountable to its citizens.

It usually starts with a person inside government who doesn’t want particular information in the records to be revealed. Next is a call to someone in the government’s legal department and then another lawyer and another lawyer until a “case” can be made to withhold the records.

It often does not matter if the reasoning undermines the public records law, which the Tennessee Supreme Court has said “serves a crucial role in promoting accountability in government through public oversight of governmental activities.”

The result is that, bit by bit, the well-traveled path by some government lawyers feeds and breeds a culture of casual disregard for the transparency citizens deserve and expect.

A citizen’s only real option in the face of this type of defense of government secrecy is to hire a lawyer and file a lawsuit to try to enforce a law that no one inside government will enforce. And, as those who follow this road know, most citizens just don’t have the time and cash.

Here’s what happened in Memphis: A citizen, long involved with animal rescue groups in Memphis, asked for records related to a particular animal kept by Memphis Animal Services (MAS). These included medical records that would show the treatment of the animal by the city-owned shelter.

But a few months earlier, the animal service’s director, Alexis Pugh, had asked the city’s legal department whether such medical records could be withheld.

“MAS sometimes receives very broad requests for animal medical records from people who have no connection to the animals, so they are very interested in whether there is a statutory basis for withholding these records,” the city’s attorney wrote to the state’s Office of Open Records Counsel (OORC), an office created to help citizens and government understand the public records law. The city’s attorney was probing whether the state law that provides privacy for human medical records could also be understood to allow the city to deny access to animal medical records.

Lee Pope, the attorney in the OORC, said, “[I]t does not make sense that the provisions [in state law] governing patient records would apply to animal patients,” but he ultimately deferred to the Tennessee Department of Health (TDOH), which licenses veterinarians and vet facilities.

Paige Edwards, an attorney for the state health department, told the Memphis law department that animal medical records are not considered public records.

As the state sees it, as confirmed in an email to me, no differentiation exists in the law between human and non-human patients when it comes to a patient’s privilege of confidentiality. If you didn’t catch that: Dogs and cats possess a right equal to humans to keep their medical records private.

This was enough for the Memphis legal department, and MAS stopped fulfilling public records requests that would show medical treatment that its vets were giving (or not giving) to animals in its shelter.

“Effective April 26, 2021, the TDOH in congruence with the OORC determined that animal medical records are exempt from disclosure,” the Memphis law department told the citizen in an e-mail. (Later, the law department said euthanasia records could be released.)

For people concerned about such animals, this was a blow.

Under a previous administration, the city-owned shelter was raided by the Sheriff’s Department in an animal cruelty investigation. People were fired and criminal charges were filed. The city worked to turn things around, but now a new veil has been dropped to hide behind.

Are animals receiving proper medical care? Are they getting pain medication? Or are they being left to suffer without it in cages until their euthanasia date or until someone adopts them? Is the medical diagnosis of some animals such that it would be more humane to euthanize rather than wait several days for a possible adoption?

And, perhaps most importantly, why does MAS want to hide this information now, after all these years?

MAS has a $4.45 million expenditure budget. In addition to city funding, it gets donations.

Government officials often like to control the message about their programs, so they release information when they want and in the context they desire. The public records law operates differently. Citizens have the right to access information in public records, unfiltered. The public records law provides a check on what government officials say.

Remarkably, despite the city’s new reasoning that animal medical records are just as secret as human medical records, the Memphis shelter still gives out medical information in mass emails to rescue groups, hoping to find someone to adopt sick animals. But if a person were to ask for animal medical records as a check on how the shelter treated animals, the city says it doesn’t have to release them.

A record that documents how a city-owned agency treats a dog or cat in its custody is the type of public record that promotes accountability of government activities. Exploiting an imagined right of privacy of a dog is a twisted way to shield the government’s treatment of that dog.

Deborah Fisher is executive director of Tennessee Coalition of Open Government.