# FILED
February

28, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk THE TENNESSEAN, a divisi on of ) Gannett Satellite Inf ormation Network, ) Inc., and FRANK SUTHERLAND, ) ) Plaintiffs/App ellants, ) Appeal No. ) 01-A-01-9606- CH-00255 VS. ) ) Davidson Chancery ELECTRIC POWER BOARD OF ) No. 96-323-II NASHVILLE, ) ) Defendant/Appellee. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE APPEALE D FRO M THE C HANC ERY C OURT O F DAVI DSON COUN TY AT NASHVILLE, TENN ESSEE THE HONORABLE ELLEN HOBBS LY LE, CHANCEL LOR

ALFRED H. KNIGHT W ILLIS & KNIGHT 215 Second Avenue, North Nashvil le, Tennessee 37201 Attorney for Plaintiffs/Defendants LARRY STEW ART HENRY D . FINCHER 424 Church Street, Ste. 2800 Nashvil le, Tennessee 37219 EUGENE W ARD N.E.S. General Counsel 1214 Church Street Nashvil le, Tennessee 37203 Attorneys for Defendant/Appellee FRANK S. KING, JR. KING & BALLOW 1200 Noel Place 200 Fourth Avenue North Nashvil le, Tennessee 37219 Attorney for Tennessee Munici pal Electri c Power Association

AFFIR MED I N PART ; REVE RSED I N PART ;

AND REMAN DED

BEN H. CAN TRELL, JUDGE CONCUR: LEW IS, J. KOCH, J.- 2 - 

## O P I N I O N

This case arose out

of the efforts of a Nas hvil le newspaper , the Ten nessean, to obtain from the El ectric Power Board of Nashv ille the names , addresses, and telephone num bers of all Nashville Electric Service(NES) customers pursuantto the Tennessee Publ ic Records Act. See

Tenn. Code Ann. § 10-7- 101 to 10-7-606 (1992 & Supp. 1996) . The Chancery Court of Dav idson County held that the information sought by the Tennessean was a public record and thus must be provided. However, the trial cour t conclu ded tha t NES had the righ t to ch arge the Tennessean $91,619.00 for the costs of producing th is in formation and of notifyi ng its customers of the Te nnessean's request. The f ollowing issues ar e raised in this appeal:

1. Whether the information requested by the Tennessea n is a re cord within the meaning of Tenne ssee's Public Records Act? 2. Whether a request pu rsuant to t h e Tennessee Pub lic RecordsAct for a customer l ist may be conditioned upon p aym ent for the costs of notif ying the customers as a "reasonable rul e governi ng the making of . . . copies"? 3. Whether the requir ement for payingthe costs has becomemoot in lig ht of the fact that, subs equent to the trial court's judgement, NES voluntarily notif ied its customers of the Tenne ssean's request in a public affairs flyer inserted into NES' monthly bill?

After a careful rev iew

of the record, we reverse the decis ion of the trial court finding the requested informat ion to b e a record w ithin the purv iew of Tennessee's Publ ic Rec ords Act. H owe ver, sh ould the Tennesse an access this information in a law

ful manner, we affirm the trial cour t’s decisi on upholding t he costs associated with no tifying N ES customers of the access as reasonable under the statute. I.- 3 - It is not disput ed that NES does n ot have theinformation soug ht by the Tennessean in the form of a document w ith the names, addresses , and p hone numbers of it s 292 ,000 cust ome rs. In the c han cery court, NES presented s everal witnesses who testified regarding the procedure which must be undertaken and the expensesthat must be incurred i n order to compi le such a li st from the records in the possession of NES

.

Throu gh the affidavit of Vic tor Hatrid ge, Vice P resident and C hief Information Officer for

NES, the reco rd es tabl ishe s tha t NES insta lled an In tera ctive Voice Response system for th e purpose of identif ying premises with power outages. As a consequence, NES began actively soliciting the telephone nu mbers of it s customers. NES no w h as ap proxi mately 90% of thes e numbers though it does not distinguish between unli sted or unpublished and listed or pub lished phone numbe rs.
Mr. Hatridge stated that to his knowledg e, NES does not have a li st or data compilation w hich contains only the i nformation r equested by the Tennessean
nor has NES ever needed s uch a list i n order to conduct its

business. H e stated that afterNES investig ated w hether it had a c ustomer list including this informatio n, the closest data compilati on it found was a microfiche report that it generated mont hly which includes the names and addresses of ser vice meter

locations. At this point, an NES employee faxed the Tennessean an esti mate of $91,619. Approx imately $5,50 0
o f this amount was for the product ion of the list and the remainder was for the cos t
asso ciat ed wit h not ifyin g the c usto mers in acc orda nce wit h NES ' not ific atio n pol icy.

In his affidavit, Mr. Hatridgetestified that, after the estimate w as sent to the Tennessean, he discovered that a Master Tape which NES generates on a weekly basis was als o availabl e. It contained the servi ce location number, the meter nu mber, the name of the customer responsible for pay ing for the s ervice at the service location, the address co rresponding to the locati on of the meter, atelephone number correspondingto the service location, the customer num ber, a critical health indicator,- 4 -

and NES distribution system identifiers. Mr. Hatridge said the cost of comput er ti me and materials to produce a copy of the Master Tape would be approximately $100.00. If NES were to modify theMaster Tape so as to excl ude data fieldsnot requeste d by the Tennessean, the cost of writi ng a computer pr ogram to e ffectuat e such an exclusio n would be app roximately $1,800.00.

NES also presented the affidavit of W endell Wheeler an employee of Seltman, Cobb, & Bryant ( SCB), the outs ourcing contractor for all of NES' i nformation systems. He said th at his SCB does have a computer generated cumulative list conta i ning the name of each active customer and the address of his or her electric meter. However, it does not contain telephonenumbers or act ual mailing addresses
as th ere are approx imately 60,00 0 mailing add resses w hich do not cor respond to a serviceaddress. In h is affidavit, Mr. Wheeler testified that in order to wri te and run
a new prog ram to add NES' customers' tel ephone numbers and mailing addr esses to the existing format of the custom er list, it would cost about$4,500 whic h would in clude $2,677 in pr ogramming costs and $1,828 in com puter time. Mr. W heeler was in accord wi th Mr. Hatr idge that NE S had never r equested such a list

and thatthere is no benefit to NES i n having such a list.

NES' notification pol icy to w hich we hav e already a lluded arose out of NES' concern for the privacy and, in some cases, the physical safety of its customers. NES introduced as an exhibit an article published in t he Tennessean on October 25, 1994, regardingthe murder of a confiden tial informant for th e Nashville Police Departmentoccurringho urs before the victi m was to g ive testi mony against a convicted drug dealer

. The article stated that the v ictim's mother had filed a lawsuit charging that NES was liable for her son's death beca use it had giv en someone the victim's address purs uant to public r ecords law . Follow ing this i ncident, NES ado pted the recordspolicy on December 21, 1994

. This policy requires , in part, noti fication to1 T his cost i ncluded $82,200 f or t he cost to not if y cust omers of the i nquiry ata fi rst class post age rate of 27. 4 cents per maili ng and $4, 200 for the ov erti me cost of 3 mail room em ploy ees.

- 5 - be sent to citi zens w hose personal N ES accountinformation hasbeen accessed by
an un auth orize d thi rd pa rty.

In response to the Tennessean's sug gestion that the customers be notified in Power Notes -- the monthly flyer inserted into the NES stateme nt -- Teresa Corle w, NES's Di rector of Cor porate Communicati ons, explai ned NES's posi tion on this type of notification as foll ows:

[T]he purpose of "Power Notes" is to provi de information to customers about NES prog rams and serv ices and nonprofit co mmun ity events . . . . I f NES allowed The Tenne sse an to use "Power Notes" for notif ication, all customers desi rin g infor mation could reque st the same greatlyreducing o r eliminati ng the amount of space to be used for business pur poses. In addition, it is NES' policy to notify customer

s via a fir

st class l etter

because not all customers read "Power Not es." Ms. Corlew

then sent the above-ment ioned estimate of the cost of providingthe names, addresses and t elephone numbers of the ap proximate 300, 000 NES customers which was $91,619, $86,400 1 of which was the cost to n o tif y the customers. At that time, there were actual ly 292,024 N ES customers.

Followi ng the appeal to this court, we granted the part ies' motio ns to admit post-judg me nt facts. The Tennessean s ubmitted the March 1996 issue of Power Notes , the first page of whic h contained an ar ticle w hich was entitled, "The Public Right To Know

vs. Pers onal Privacy." The ar ticle began with the foll ow i ng statement: "The Tennesse an requested every NES customer name, add ress a n d telephone number, includi ng those numbers that are unli sted." Itcontinued todiscuss the Open Records Act and the tr ial cou rt's decis ion determiningthat the req uested information wa s a record.- 6 - NES submitted the af fidavit of Elaine Robin son, the employee of NES who is the official admini strator of the N ES Public Access and Notification Policy

. She exp lained that

the M arc h 199 6 is sue of Power Notes was not des igned to provid e actual notice to customers that unauthor ized third parties would be provided access to their account

information nor di d it a ccomplish such notice. Furthermo re, Ms. Robinson explained, each iss ue of P ower Notes costs NES $5, 128 to print. She articulated the pro b lems associat ed with noti fying cust omers via Power Notes as follows: If N .E.S. i s required to add a sheet to each mailing to

noti fy its customers of unauthorized third party access to personal customer informati on, the estimated add itional cost would appr

oximately

be $82,200, because the extra weig ht would force N.E.S. to pay additional postage i n that amount (300,000 cust omers @ 27.4 cents each). Furthermore, N.E.S. does not currently have the capa bility to a dd an extra s heet. It wo uld be forced to ex pend significant

amounts to purchase machinery or contract with another firm w ho had the capa bilit y to process an additional sheet

of information . . . Each issue of "Pow er Notes" rou tinely requires thi rty (30) to sixty (60) d ays t o draft, rev ise, p rint and mai l. To ensure that each customer recei ve d his/her "Power Notes" prior

to release of

customer accoun t information to unauthorized third parti es, N

. E.S. would have to delay issuance of requested public information until a f ull cycle of "Power N otes" had been dist ributed, which would delay release of information for sixty (60) d ays. N.E.S. has determined that this woul d not be in the best interestsof compliance with the interests of th e public.

In addition, Ms. Robinson stated in he r a ffi davit that N ES does not believe that

all of itscustomers act ually read Power Notes . In supp ort of th is b eli ef, NES submitted, as

a post-judg ment fact, a letter printed on theeditoria l page of the March 28, 1996 issue of theTennessean. The lett er whic h was wri tten by a dissatisfied NES customer ca rried the followin g title: "B ill is bad enough wi thout the junk mail." The author expressed her opinion that "the Nashville Electric Service bill has become increasingly difficult to distinguish f ro m ordinary junk mail" and suggested that "disgruntled customers . . . stuff those mailers in the return envelopealong w ith [their] pay ment and let NES de al with them."2 The text of t his sect ion i s as fol lows: "Re cor ds," as used in th is part , shal l be constr ued to mean any records of the cou nty leg islative b ody an d co m m on law , circu it, cr im ina l, or ch anc ery co urt, the regis ter's b ook s, th e surv eyor 's and entry tak er's book, and al l ot her publ ic r ecords, requi red by law to be kept i n the sev eral court s of t his st ate. Ten n. Code A nn. § 10-7-101 (1992). - 7 - II. Turning to the issues

raised by

this a ppe al, we first address the question of whether or

not the names, addresses, and phone n umber s of NES customers soughtbythe T enne ssea n are in deed "re cords" w ithi n thecont empl atio n of th e Tennessee Public Records Act. See Tenn. Code Ann. § 10-7- 101 to 10-7-606 ( 1992 & Supp. 1996). As it is not disputed that this info rmation does not exist in the fo rm requested, NES contends that the law can not be use d to compel it to create a record which does not already exist. The Tennessean count ers that the law requires the government

to make avai lable to thepublic information, not doc uments or print outs in document form. The Tenn essean r ejects that computer-stored information is accessible only in the format in which it is entered on the computer.

In order to res olve this

matter, we look to the p ertinent por tions of the code. The statute upon w hich the Tennessean r elies in or

der to obtain the information it wants is f o und in Tennessee CodeAnnotated § 10-7- 503(a) and provides as follows: (a) All state, county and munic ipal recor ds and all records mainta ined by the Tennessee performing arts center managementcorporation, except any public doc ume nts authorized to be dest royed by the coun ty pu blic recor ds commi ssion in accordance with § 10-7-404, shall at all times, during bu sin ess hours, be o pen for personal inspection by a nycitizen of Tennessee, an d those in ch arge of such records shall not refuse such rig ht o f inspection to any citi zen, unless otherwis e provided by stat e law. Id. § 10-7-503(a) (Supp. 1996) . The term "recor d" is defined in th e Public Records Act in two s eparate places, under a secti on entitled, " ' Records' construed," 2 Id. §10-7-101, and under the headi ng, "Definiti ons." Id. § 10-7-301(6). As fo r the- 8 -

former, this cour

t has held that it does not apply because it was included in chapter 7 of Title 10 by e rror. Creative Restaurants, Inc. v. City of Memphis , 795 S.W.2d 672, 675 (Tenn. App. 1990). Therefore, we l ook to the definition arti culated in the "Definitions" section which reads as f ollows:

(6) "Public r e cord(s)" or "state record(s)" means all documents, papers, letters, maps, books , p hotographs, microfilms, electronic

data processi ng files and out put, films, sound recordi ngs, or other material, regardless of physical form o r cha racteristi cs made or rec eived pursua nt to law or

ordinance or in connection w ith the trans actio n of official business by any governmental agen cy. Tenn. Code Ann. § 10-7- 301(6) (1992) ; see Griffin v. Cit y o f Knoxville , 821 S.W.2d 921, 923 (Tenn. 1991) (using this def inition of public records todetermine whether a deceased's hand writte n not es were publ ic rec ords ava ila ble fo r inspectio n by the public under § 10-7-503 of the Public Records Act).

As we rev iew

these statutes, we keep i n mind sever al well -established rules. "The fundamental rule of statutor y constru ction is to ascertain and, if possible, give effect to the int ention or purpose of the legisl ature as ex pressed in thestatute." Memphis Publ'g Co. v. Holt, 710 S.W .2d 513, 516 (Tenn . 1986) (ci ting Worrall v. Kroger Co. , 545 S.W.2d 736 (Tenn.1977)). Where a statute is una mbiguous, this court must ascertai n and give effect to the intentio n an d purpo se of the General Assembly as expres sed in the four cor ners of the s tatute. Gabe l v. Le rma , 812 S.W.2d 580, 58 2 (Tenn . App. 1 990) (cit ing Memphis Publ'g Co. , 710 S.W .2d). In so doing, the w

ords of t he statute ar e to be given their na tural an d ordina ry meanin g, without a forced or subtle construction that would l imit or ex tend the meaning of the language. Tuggle v. Allright Parking Sys., Inc. , 922 S.W .2d 105, 107 (T en n. 1996) (citing National Gas Distrib., Inc. v. State , 804 S.W.2d 66 (Tenn. 1991)).

The statute opens up "recor ds" to public i nspection. Tenn. Code Ann. § 10-7-503(a). Records are "documents, pap ers, letters, maps, books, photographs,- 9 -

microfilms, electronic

data processi ng files and out put, films, sound recordings" all of which indicate a compilation of information and are dis ting uishable from the information compiled therei n. Id. § 10-7-301(6) . The dictionar y defines the noun "record" first as "[a]n account, as of informati on or facts, set down especially in writi ng as a means of preservi ng knowl edge." The American Heritage Dictionary 1511 (3d. ed. 1992). A secon d definiti on is "[i]nformation or data on a particular subject collected and preserved." Id

. Information, on the ot her hand, is define d as "[k]no wledge derive d fro m stu dy, experience, or instructi on" or "a coll ection of facts of data." Id. at 92 7. It is cl ea r that the natur al and ordinar

y meaning of "record"
co ntemplat es information gat hered or org anized on a par ticular sub

ject and in a part icu lar

form at an d not

the i nfor mati on or

data its elf.
Appellantsemphasize the portion of the statutory

definition w hich states that records can be " othe r material, regardles s of physical form or charact eristics. " Tenn. Code Ann. § 10-7-301(6). The y suggest that this language encompasses any "information" which mi ght be stor ed on a co mput er. The w ords and p hras es of

a st atute must "draw their meaning from the context of the whole statute." Winter v . Smith , 914 S.W.2d 527, 538 (Tenn. App. 1995) ; McClain v . Henry I. S

iegel Co. , 834 S.W.2d 295, 296 ( Ten n. 19 92). In con text, this l angu age f ollo ws an e xtens ive list and reads as follows: "documents, pa pers, letters, maps, books, ph otographs, microfilms, electronic data processi ng files and out put, films, sound r ecordings, or

other material, regardless of physical form or characteristics ." Tenn. Code Ann. § 10-7-301(6). We find that, by

followin g a list of different forms of organized inform ation, this catch-all phrase is intended to

ensure that the def inition of "public record" w ill incl ude any form
or ac cou nt of purposely

compiled informati on regardl ess of whether it is in the list. However, this language does not extend the def inition of "record" to the basic d ata which mig ht make up such a collection of infor mation.- 10 - In a re cent case, Seaton v. Johnson , 898 S.W.2d 232 (Tenn. App. 1995), this court noted the distin ction betw een information and records as i t relates to requests madepursuant to § 10- 7-503. The case involved a fatal collisi on between
a car and atrain, and the plaintiffs ma de a request pursuant to the Pub lic Records Act that the Tennessee Depar tmen t of Transportatio n provide them with certain "information" with regard to spec ified railroad c rossings

. Id. at 233. Included in the list of information sought by the plaintiffs were the fo llowing: 1) the avera ge daily traffic; 2) the aver

age daily freight train volume; 3) the average daily passenger train volume; 4) t he maximum timetabl e speed; and 5) theaccident history. Id.

The court stated t hat it was “hindered by

the fact that both parti es refer to the ‘release of inform ation’ rather than ‘the productio n of records for examinatio n.’” Id. at 236. The information requested was con tained in sur veys, lists and data compiled in connection with a federal ly funded prog ram for the purpose of identifying and evaluatin g the s afety enhancement of rai lroad-hig hway c rossings

. Id. at 234. Federal law

provided that "notwithstanding any other provision of law," these reports, surveys, schedules, lists, and data "shall not be subject to discove ry or admi tted into evidence in a Federal or State cour t proceeding or considered for other purposes in any action for damag es a rising from any occur rence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data." Id. (quoting 23 U.S.C. § 409). Foll owi ng fe deral authori ty, this court determine d that the federal statute protectsdata as well as documents. In so holding, the court "observed that plaint iff's letter was not an asserti on of the rights guaranteed by

Section 10-7- 503 , but a request that the defendan t search its records for a shopping list of information to be furni shed to plaintif f." Seato n , 898 S.W.2d at 233 (emphasis added). Likewi se, the Tennessean does not request records pursuant to § 1 0-7 -503, bu t the information found within NES' existing records.- 11 - For additional su pport of its cont ention that thePublic Records Act mak es available "information," the Tennessean p oints to the code section whic h addressesthe computer sto rag e of records. Tenn. Code Ann. § 10-7- 121 (Supp. 1996) provides as follows:

(a)(1) Notwith sta nding any other pr ovision of l aw to the cont rary, any information required to be kept as a record byany government official may be maintained on a computer

or removab le comp uter sto rage med ia, including CD ROM disks, instead of bound books or paper records if the following standards aremet: (A) Such information i s availabl e for public in s pe ction, unless it is a confidential record acco rding to l aw; . . . (D) The official can provide a paper co py of the inform ation when n eed ed or when re ques ted b y a member of the public. The thrust of this statute is that it authoriz es the computer storage of re cords so long
as certain condi tions are met. The Tennessean emphasizes t he fact that the statu te
uses the term "informati on." Howev er, the statute initially

refers to"informat ion required to be kept as a re cord. " Id. § 10-7-121(a)(1). Not only does this phrase further demonstrate the di fference between in formation and records, but it eviden ces an understanding that the open records prov ision of Title 1 0, § 10-7 -503(a), makes available "information req uired to be kept as a r ecord" and n ot th e in formation its elf.
Returning to the statutor y definition of "record" at is sue he re, we note that records are "made or received pursuant tolaw or ordinance or i n connection w ith the transaction of official business by any g overnmental ag ency." § 10-7-301(6)

. The statute contem plates that the i nformation or data w hich makes up a r ecord has already been "made or received." Further, t he record has be en "made or recei ved" in furtherance of s ome business purpose. It is not disputed that the nam es, addressesand phone numbers of NEScustomers have not yet been put into the fo rm of a document. Moreover, both M r. Hatridg e and Mr. Wheeler testified that NES had
never been in need of no r was it presently in need of such a docu ment in order to conduct its business. In conclusio n, the s tatutes at issue in this case are3 W isc on sin's stat ute pr ovi des that"any request er has a r ightto i nspect any record. " W is. Stat. § 19.3 5 (19 96). "Record" is de fi ned, i n part , as "any material on which wri tt en, dr awn, pr int ed, spoken, visu al or el ectro magnetic i nformati on is recorded or preser ved, r egardl ess of phy sical form or charact eri sti cs, which ha s b ee n c re ate d o r is being kept by an autho ri ty . ' Record' i ncludes, but i s not li mited to, handwri tt en, t yped or pri nted pages, maps, charts, photogr aphs, f il ms, recordi ngs, t apes (includ ing co m pute r tape s), co m pute r printo uts a nd o ptical d isks ." Id. § 19 .32(2 ). - 12 - unambiguo us on the ir faces. It is clear t hat the General Assembly i ntended that records, and not the informati on of which they are compiled , be open to the public under § 10-7-503(a) . We hold that the law can not be used to compel NES to create
a record with the names, addresses and phone nu mbers of its customers when such
a record has not already be en "made or recei ved" in connec tion with the business of NES.

W isconsin's appellate court address ed an analogous situation in interpretingits own open recordslaw. 3 In George v. Record Custodian , 485 N.W.2d 460 (Wis. App. 1992), a priso n inmate made a req ue st under W isconsin's open recordslaw for the "disclosure of data. He asked for the number ofcla ims the [Department

of Justice] re ceived in 198 8, 19 89 and 1990, the number it settled without litigatio n as a dir ect result of not ices of claims and the number it di sallowed in the same period." Id. at 462. The inmate's req uest was den ied "on grounds that the department had no doc ument providi ng that information and the open records law does not requir

e the creation of a new recor d by ext racting information from existin g recordsto satisfy a request." Id. The court agreed that W isconsin's open records law "does not requi re the custodian to collect or compile statistics or create a record for the benefit of a requester." Id.

In holding as the Wisconsin appellate cour t did, this court notes the ramificationsof a contrary holding - - that § 10-7- 503(a) wou ld req u ire government agenciesto compile new records from the inf ormation found in their existing records. It is reasonably foreseeable that such a hol ding wou ld greatl y strai n the resource s of often under-funded and under-employed government agencie s. This court does not bel i eve the legis lature intended to impose such a burden. At the s ame time, we do- 13 -

not mean to precludea government agency from voluntarily creating a record for the benefit of a requester. If an agency determines that it can manage the incre ase d hardship caused by t he creation of a record at the request of a cert ain party, then the
reasons forrefusing toimpose the burden of mandatory compil ation are eli minated.

III.

The second issue raised on appeal is whethe r the Tennessee Pu blic RecordsAct author izes a governm ental a gency to cha rge members of the public who request access to publ ic records the costsof notifying third parti es that the requests have been made. As relates to NES, this

issue is still rel evant: the Tenness ean can access the information i t desiresin the form of the existin g records thereby ca lling i nto play NES' notificat ion policy . As stated, t he policy requires that notificati on be sent to citizens whose pers onal NES account information has been accessed by an unauthorized third party . In defending the legali ty of its records access poli cy, NES reliesup o n Tennessee Code Annotat ed § 10-7-506(a) (1992) w hich prov ides as follows: (a) In all cases where any

person has the right to inspect any such public records, such person shall have the right to take extr

acts or make copies thereof, an d to make photographsor photostats of the sa me while such records are in the possession, custody and contro l of the lawful custodian thereofor suc h cus todi an's auth orize d dep uty; provided, the lawful custodian of such records sha ll have the right toadopt and enfo rce reasonable rules gov erning the making of such extracts, copies, photo gra ph s or photostats.

As the trial judge concluded, this issue hing es upon adetermination of whether chargingthe Tennessean $86 ,400 for the cost of notification is a "reasonable rule governi ng the making of . . . copies." Id. In asserting that its notification policy is a reasonable r ule under the st atute, NES note s that, b y requi ring pers onal notification, the policy

balances the publ ic's rig ht to access public records versus their right to pr

otect themselves from the conseq uences of another per son's access

.- 14 - On the other hand, th e Tennessean submits t hat this is a plainly incorrect misinterpretation of th e Act in tha t the authority to adopt "rules " does not implythe authority to impose costs. In addition, t he Tennessean asserts that the rulemaking authority

conferred by

the Act relat es to the making of copies of records, not to the a uxilia ry effort s to mitigate the effects of producingrecords. F inally, the Tennessean points to the pr ovisions following§ 10-7-506(a) found in § 10-7-506(c) which author ize the ass essmentof costs under narrow carefully defined conditio ns. It argues that this specific stat ute is superfluou s if an agency has general authority

to assess costs

for any reas onable expendi ture under subs ection (a).

Init ially, we rejec

t the contention that the presence of the provis ions for imposing costs found in § 10 -7-506(c) supports the Tennessean's pos ition. Indeed,
we find that the language of subsection (c) is harmonious w ith NES' in terpretation t hat § 10-7-506 author izes thecosts at issue. Section 10-7-506(c) applies on ly to records which include computer g ene rate d ma ps or othe r geogr aph ic da ta an d which have commercial value. It states as follows:

(c)(1) If a request i s made for a copy of a publ i c record that has commercial value, and s uch request requires the reproduction of all or a p orti on of a computer gener ated map or other simil ar geogr

aphic datathat was developed with public funds, the legislat i ve bo dy of any co unty to which this s ubsection applies may establish an d impose re asonable fees for the reproduc tion of such reco rd, i n addition to any fees or charg es that may law fully be imposed p ursuant to this section. The addi tional fees authorized by this s ubsection may no t be assessed against individ uals who r equest copies of recor ds for themselvesor when th e record req uested does not h ave commercial value.

Tenn. Code An n. § 10-7 -506(c)(1) (1992). By its own terms, this s ubsection authorizes

the imposition of fees in a ver y specific

situation "in addition t o any fees or chargesthat may lawfully be imposed pursuant to this section." Id. Regarding these additio nal fe es auth orized by § 10 -7-506( c)(1), the statute provides t he fol lowing:- 15 - (2) The additional fees aut horized by this subsect ion shall relate to the actual devel opment costs of such maps or geogr aphic data and may

include: (A) Labor costs; (B) Costs incurred in design, developm ent, te sting, implementation and t raining; and (C) Costs necessaryto ensure that t he map or data is accurate, complete and cur rent, includi ng the cost of adding to, updat ing, modifyi ng and deletin g information. Id. § 10-7-506(c)(2)(A) -(C). Clearly , this prov ision is not intended to cover

the costs forthe copying or producingof the records. However, the lang uage contemplates that there may be other lawful "feesor charge s . . . pursu ant to this sec tion." Id. § 10-7- 506(c)(1). The only other portion of this section which could be read to aut horize fees
or charges is subsection (a)'s "right to adopt and enforce reas onable rules g overning the ma king of . . . copies." Id. § 10-7-506(a) . Therefore, w e conclude that Tennessee Code Annotated § 10- 7-506, when read in its entirety , indicatesthat the authority to " adopt . . . r

easonable rules " does include the authority to impose costs.

As for the reasonableness of imposing costs for

the notification of NES' customers, we begin by quoting the trial court's statement on reason ableness:

"Reasonablen ess" is a touchsto ne of Anglo-Am erican law

. It is a concept which takes into account wha t is "just, proper, ordinary or usual, fitting and appropriate." Black's Law Dictionary (4th ed. rev. 1968). It is a concept which al so demonstrates w hat is vi brant and bril liant abou t Anglo-Ameri can law, par ticularly the common law , and that is that "reas onableness" is a flexib le concept which works for all times and all circumstances to be interpreted based thereon. NES ' notification policy was adopted in an ef fort to address the saf ety and pri vac y concernsassociated w ith giv ing out the per sonal information of its customers. As a dramatic example of

the danger of not notifying a customer that his personal records have been accessed, N ES presented an ac count ofa man who allegedly used this information from NES t o find his murder victim. While we assume that req uests motivated by intenti ons to inflict bodily har m will be scarce, i t i s clear that the Tennessean's request would include many phone numbe rs which are otherwise- 16 -

unattainable as NES hascollected both listed and unlisted num bers in order to install
a s ystem to cope with power outages. Notification w ould permit thos e who have unlisted numbers the opport unity to remove them from NES' re cords or, i n the alternative, to change their numbers.

Providin g the information req uested by NE S on 292,000 customers for
a total fee of $91,619.00 amounts to only 31 cents per

customer. We agree wi th the tria l court that "[w

]hile [the Tenness ean] complains th at the cost for i t obtaining th e information in issue is ex orbitant, . . . the information it s eeks is voluminous." We find that in light

of the justific ations presented fo r NES' notification policy, this policy representsa "just . . . and appropriate" rule. We hold therefore that, in adopting this poli cy, NES was within its "rig ht to adopt and enforce reasonable rul es governi ng the making of . . . copies." Id. § 10-7-506(a).

IV.

Fina lly, we must deter mine whether the trial court's req uirement fo r paying the costs of noti fication hasbecome mootin light of the fact that, subseq uent to the trial court's j udgment, NES v oluntarily notified its c ustomers of the Tennessean's req uest

in a mont hly iss ue of Power Notes . By its language, the March 199 6 issue of Power Notes did not notify

the customers t hat the information w as to be relea sed a s is re quire d by th e pol icy. Instead, the article explained that a request had been made, that th e trial court had ruled that NE S must p rovide the list of its customers at a cost, and t hat the Tennessean had fail ed to co mply with the t rial court's order w ith regar d to payingthe notification cost. It noted that the Tennes sean mightappeal the case a nd that unhappy c ustomers should contact t he ir state representativ

es and express

their opini on that th e state's public records law should be amended to excl ude customers' personal informati on.- 17 - Even if th e Ma rch 1996iss ue of P ower Notes failed to notify

NES customers as requir

ed by the p olicy, the Tennessean subm its that this article "demonstratesthat NES ca n pro vide s uch n otif icat ion vir tual ly c ost free throug h its routine billing procedures, thereby refuting [NES'] assertion th at such notificati on can be made only at a

cost of $86,4 00." However, the testi mony of Ms. Ro binson, an NES employee, was that Power Notes costs $5,128 to print and thatadding an extra sheet to each mailing would add at least $82,000 for the excess postage . In addition, there would be expenses for the new machinery to process this extra sheet. It is clear that for NES such notification i s not "vir tually cost free." More over, Ms . Robinson and another employee, M s. Corlew , testified that Power Notes is not setup for notifying NES custo mers w hen thei r pers onal records have been ac cesse d. Dueto the time it takes to draft, r evi se, pri nt an d mai l ea ch i ssueof Power Notes , information requested by the public could not be released for 60 days. Furthermore, the purpose of this publicat ion is not ser ved if NES i s required to use it i n this way

.
Lastly, e mployees of

NES t estified that including the no tification in Power Notes

would not b e as effective as notifying customer by a first-clas s let te r because not all cust omers read Power Notes

. As stated, NES presented a letter from
a customer complai ning that the material inc luded with th e b i l l w a s " j u n k m a i l

. " We agree that NES customers are much m ore likely to read a first

class lett er than aflyer wh ich contains information about NES programs and services and non-p rofi t community

events. F or the foregoi ng reasons, we conclud e that NES shoul d not be required to notify its customers pur suantto its notification pol icy by means

of Power Notes

.

In conclusion, we find that N ES is not obli gated u nder the Public RecordsAct to prov ide the information in the for m request ed by the Tenness ean. However, should the Tennesse an procure this inform ation th rough existing records, it is reasonabl e for NES to req uire the Tenne ssea n to bear the financi al burden of- 18 -

notifying NES' customers of the access by mea ns of a first class le tte r as is N ES' poli cy. The decision of the trial court is therefore reversed in part and af firmed in part and the cause is remanded to the Chancery Court of Dav idson County for any further procee dings that mi ght be come nece ssary. Tax the costs on appeal to the appellant.

________________________________ BEN H. CAN TRELL, JUDGE

CONCUR:

_______________________________ SAMUEL L. LEWIS, JUDGE

_______________________________ WILLIAM C. KOCH, JR., J UDGE