The Tennessean v. Electric Power Bd. of Nashville

• Court: Court of Appeals of Tennessee
• Decided: February 28, 1997
• Docket: 01A01-9606-CH-00255
• Status: Published

Opinion

THE TENNESSEAN, a division of ) Gannett Satellite Information Network, ) Inc., and FRANK SUTHERLAND, ) ) Plaintiffs/Appellants, ) Appeal No. ) 01-A-01-9606-CH-00255 VS. ) ) Davidson Chancery ELECTRIC POWER BOARD OF ) No. 96-323-II NASHVILLE, )

Defendant/Appellee. ) ) FILED COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE February 28, 1997

APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY W. Crowson Cecil AT NASHVILLE, TENNESSEE Appellate Court Clerk

THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

ALFRED H. KNIGHT WILLIS & KNIGHT 215 Second Avenue, North Nashville, Tennessee 37201 Attorney for Plaintiffs/Defendants

LARRY STEWART HENRY D. FINCHER 424 Church Street, Ste. 2800 Nashville, Tennessee 37219

EUGENE WARD N.E.S. General Counsel 1214 Church Street Nashville, Tennessee 37203 Attorneys for Defendant/Appellee

FRANK S. KING, JR. KING & BALLOW 1200 Noel Place 200 Fourth Avenue North Nashville, Tennessee 37219 Attorney for Tennessee Municipal Electric Power Association

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR: LEWIS, J. KOCH, J. OPINION

This case arose out of the efforts of a Nashville newspaper, the

Tennessean, to obtain from the Electric Power Board of Nashville the names,

addresses, and telephone numbers of all Nashville Electric Service (NES) customers

pursuant to the Tennessee Public Records Act. See Tenn. Code Ann. § 10-7-101 to

10-7-606 (1992 & Supp. 1996). The Chancery Court of Davidson County held that the

information sought by the Tennessean was a public record and thus must be

provided. However, the trial court concluded that NES had the right to charge the

Tennessean $91,619.00 for the costs of producing this information and of notifying

its customers of the Tennessean's request. The following issues are raised in this

appeal:

1. Whether the information requested by the Tennessean is a record within the meaning of Tennessee's Public Records Act?

2. Whether a request pursuant to the Tennessee Public Records Act for a customer list may be conditioned upon payment for the costs of notifying the customers as a "reasonable rule governing the making of . . . copies"?

3. Whether the requirement for paying the costs has become moot in light of the fact that, subsequent to the trial court's judgement, NES voluntarily notified its customers of the Tennessean's request in a public affairs flyer inserted into NES' monthly bill?

After a careful review of the record, we reverse the decision of the trial

court finding the requested information to be a record within the purview of

Tennessee's Public Records Act. However, should the Tennessean access this

information in a lawful manner, we affirm the trial court’s decision upholding the costs

associated with notifying NES customers of the access as reasonable under the

statute.

I.

-2- It is not disputed that NES does not have the information sought by the

Tennessean in the form of a document with the names, addresses, and phone

numbers of its 292,000 customers. In the chancery court, NES presented several

witnesses who testified regarding the procedure which must be undertaken and the

expenses that must be incurred in order to compile such a list from the records in the

possession of NES.

Through the affidavit of Victor Hatridge, Vice President and Chief

Information Officer for NES, the record establishes that NES installed an Interactive

Voice Response system for the purpose of identifying premises with power outages.

As a consequence, NES began actively soliciting the telephone numbers of its

customers. NES now has approximately 90% of these numbers though it does not

distinguish between unlisted or unpublished and listed or published phone numbers.

Mr. Hatridge stated that to his knowledge, NES does not have a list or

data compilation which contains only the information requested by the Tennessean

nor has NES ever needed such a list in order to conduct its business. He stated that

after NES investigated whether it had a customer list including this information, the

closest data compilation it found was a microfiche report that it generated monthly

which includes the names and addresses of service meter locations. At this point, an

NES employee faxed the Tennessean an estimate of $91,619. Approximately $5,500

of this amount was for the production of the list and the remainder was for the cost

associated with notifying the customers in accordance with NES' notification policy.

In his affidavit, Mr. Hatridge testified that, after the estimate was sent to

the Tennessean, he discovered that a Master Tape which NES generates on a weekly

basis was also available. It contained the service location number, the meter number,

the name of the customer responsible for paying for the service at the service

location, the address corresponding to the location of the meter, a telephone number

corresponding to the service location, the customer number, a critical health indicator,

-3- and NES distribution system identifiers. Mr. Hatridge said the cost of computer time

and materials to produce a copy of the Master Tape would be approximately $100.00.

If NES were to modify the Master Tape so as to exclude data fields not requested by

the Tennessean, the cost of writing a computer program to effectuate such an

exclusion would be approximately $1,800.00.

NES also presented the affidavit of Wendell Wheeler an employee of

Seltman, Cobb, & Bryant (SCB), the outsourcing contractor for all of NES' information

systems. He said that his SCB does have a computer generated cumulative list

containing the name of each active customer and the address of his or her electric

meter. However, it does not contain telephone numbers or actual mailing addresses

as there are approximately 60,000 mailing addresses which do not correspond to a

service address. In his affidavit, Mr. Wheeler testified that in order to write and run

a new program to add NES' customers' telephone numbers and mailing addresses to

the existing format of the customer list, it would cost about $4,500 which would include

$2,677 in programming costs and $1,828 in computer time. Mr. Wheeler was in

accord with Mr. Hatridge that NES had never requested such a list and that there is

no benefit to NES in having such a list.

NES' notification policy to which we have already alluded 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 the Tennessean on October 25,

1994, regarding the murder of a confidential informant for the Nashville Police

Department occurring hours before the victim was to give testimony against a

convicted drug dealer. The article stated that the victim's mother had filed a lawsuit

charging that NES was liable for her son's death because it had given someone the

victim's address pursuant to public records law. Following this incident, NES adopted

the records policy on December 21, 1994. This policy requires, in part, notification to

-4- be sent to citizens whose personal NES account information has been accessed by

an unauthorized third party.

In response to the Tennessean's suggestion that the customers be

notified in Power Notes -- the monthly flyer inserted into the NES statement -- Teresa

Corlew, NES's Director of Corporate Communications, explained NES's position on

this type of notification as follows:

[T]he purpose of "Power Notes" is to provide information to customers about NES programs and services and non- profit community events . . . . If NES allowed The Tennessean to use "Power Notes" for notification, all customers desiring information could request the same greatly reducing or eliminating the amount of space to be used for business purposes. In addition, it is NES' policy to notify customers via a first class letter because not all customers read "Power Notes."

Ms. Corlew then sent the above-mentioned estimate of the cost of providing the

names, addresses and telephone numbers of the approximate 300,000 NES

customers which was $91,619, $86,4001 of which was the cost to notify the

customers. At that time, there were actually 292,024 NES customers.

Following the appeal to this court, we granted the parties' motions to

admit post-judgment facts. The Tennessean submitted the March 1996 issue of

Power Notes, the first page of which contained an article which was entitled, "The

Public Right To Know vs. Personal Privacy." The article began with the following

statement: "The Tennessean requested every NES customer name, address and

telephone number, including those numbers that are unlisted." It continued to discuss

the Open Records Act and the trial court's decision determining that the requested

information was a record.

1 This cost included $82,200 for the cost to notify customers of the inquiry at a first class postage rate of 27.4 cents per mailing and $4,200 for the overtime cost of 3 mail room em ployees.

-5- NES submitted the affidavit of Elaine Robinson, the employee of NES

who is the official administrator of the NES Public Access and Notification Policy. She

explained that the March 1996 issue of Power Notes was not designed to provide

actual notice to customers that unauthorized third parties would be provided access

to their account information nor did it accomplish such notice. Furthermore, Ms.

Robinson explained, each issue of Power Notes costs NES $5,128 to print. She

articulated the problems associated with notifying customers via Power Notes as

follows:

If N.E.S. is required to add a sheet to each mailing to notify its customers of unauthorized third party access to personal customer information, the estimated additional cost would approximately be $82,200, because the extra weight would force N.E.S. to pay additional postage in that amount (300,000 customers @ 27.4 cents each). Furthermore, N.E.S. does not currently have the capability to add an extra sheet. It would be forced to expend significant amounts to purchase machinery or contract with another firm who had the capability to process an additional sheet of information . . .

Each issue of "Power Notes" routinely requires thirty (30) to sixty (60) days to draft, revise, print and mail. To ensure that each customer received his/her "Power Notes" prior to release of customer account information to unauthorized third parties, N.E.S. would have to delay issuance of requested public information until a full cycle of "Power Notes" had been distributed, which would delay release of information for sixty (60) days. N.E.S. has determined that this would not be in the best interests of compliance with the interests of the public.

In addition, Ms. Robinson stated in her affidavit that NES does not

believe that all of its customers actually read Power Notes. In support of this belief,

NES submitted, as a post-judgment fact, a letter printed on the editorial page of the

March 28, 1996 issue of the Tennessean. The letter which was written by a

dissatisfied NES customer carried the following title: "Bill is bad enough without the

junk mail." The author expressed her opinion that "the Nashville Electric Service bill

has become increasingly difficult to distinguish from ordinary junk mail" and suggested

that "disgruntled customers . . . stuff those mailers in the return envelope along with

[their] payment and let NES deal with them."

-6- II.

Turning to the issues raised by this appeal, we first address the question

of whether or not the names, addresses, and phone numbers of NES customers

sought by the Tennessean are indeed "records" within the contemplation of the

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 information does not exist in the form

requested, NES contends that the law can not be used to compel it to create a record

which does not already exist. The Tennessean counters that the law requires the

government to make available to the public information, not documents or printouts

in document form. The Tennessean rejects that computer-stored information is

accessible only in the format in which it is entered on the computer.

In order to resolve this matter, we look to the pertinent portions of the

code. The statute upon which the Tennessean relies in order to obtain the information

it wants is found in Tennessee Code Annotated § 10-7-503(a) and provides as

(a) All state, county and municipal records and all records maintained by the Tennessee performing arts center management corporation, except any public documents authorized to be destroyed by the county public records commission in accordance with § 10-7-404, shall at all times, during business hours, be open for personal inspection by any citizen of Tennessee, and those in charge of such records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law.

Id. § 10-7-503(a) (Supp. 1996). The term "record" is defined in the Public Records

Act in two separate places, under a section entitled, " 'Records' construed,"2 Id.

§10-7-101, and under the heading, "Definitions." Id. § 10-7-301(6). As for the

2 The text of this section is as follows:

"Re cords," as used in th is part, shall be construed to mean any records of the cou nty legislative body an d co m m on law , circuit, crim inal, or ch anc ery court, the register's book s, the surveyor's and entry tak er's book, and all other public records, required by law to be kept in the several courts of this state.

Ten n. Code A nn. § 10-7-101 (1992).

-7- former, this court has held that it does not apply because it was included in chapter

7 of Title 10 by error. Creative Restaurants, Inc. v. City of Memphis, 795 S.W.2d 672,

675 (Tenn. App. 1990). Therefore, we look to the definition articulated in the

"Definitions" section which reads as follows:

(6) "Public record(s)" or "state record(s)" means 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.

Tenn. Code Ann. § 10-7-301(6) (1992); see Griffin v. City of Knoxville, 821 S.W.2d

921, 923 (Tenn. 1991) (using this definition of public records to determine whether a

deceased's handwritten notes were public records available for inspection by the

public under § 10-7-503 of the Public Records Act).

As we review these statutes, we keep in mind several well-established

rules. "The fundamental rule of statutory construction is to ascertain and, if possible,

give effect to the intention or purpose of the legislature as expressed in the statute."

Memphis Publ'g Co. v. Holt, 710 S.W.2d 513, 516 (Tenn. 1986) (citing Worrall v.

Kroger Co., 545 S.W.2d 736 (Tenn.1977)). Where a statute is unambiguous, this

court must ascertain and give effect to the intention and purpose of the General

Assembly as expressed in the four corners of the statute. Gabel v. Lerma, 812

S.W.2d 580, 582 (Tenn. App. 1990) (citing Memphis Publ'g Co., 710 S.W.2d). In so

doing, the words of the statute are to be given their natural and ordinary meaning,

without a forced or subtle construction that would limit or extend the meaning of the

language. Tuggle v. Allright Parking Sys., Inc., 922 S.W.2d 105, 107 (Tenn. 1996)

(citing National Gas Distrib., Inc. v. State, 804 S.W.2d 66 (Tenn. 1991)).

The statute opens up "records" to public inspection. Tenn. Code Ann.

§ 10-7-503(a). Records are "documents, papers, letters, maps, books, photographs,

-8- microfilms, electronic data processing files and output, films, sound recordings" all of

which indicate a compilation of information and are distinguishable from the

information compiled therein. Id. § 10-7-301(6). The dictionary defines the noun

"record" first as "[a]n account, as of information or facts, set down especially in writing

as a means of preserving knowledge." The American Heritage Dictionary 1511 (3d.

ed. 1992). A second definition is "[i]nformation or data on a particular subject

collected and preserved." Id. Information, on the other hand, is defined as

"[k]nowledge derived from study, experience, or instruction" or "a collection of facts

of data." Id. at 927. It is clear that the natural and ordinary meaning of "record"

contemplates information gathered or organized on a particular subject and in a

particular format and not the information or data itself.

Appellants emphasize the portion of the statutory definition which states

that records can be "other material, regardless of physical form or characteristics."

Tenn. Code Ann. § 10-7-301(6). They suggest that this language encompasses any

"information" which might be stored on a computer. The words and phrases of a

statute 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. Siegel Co., 834

S.W.2d 295, 296 (Tenn. 1992). In context, this language follows an extensive list and

reads as follows: "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 ." Tenn. Code Ann. § 10-7-301(6). We

find that, by following a list of different forms of organized information, this catch-all

phrase is intended to ensure that the definition of "public record" will include any form

or account of purposely compiled information regardless of whether it is in the list.

However, this language does not extend the definition of "record" to the basic data

which might make up such a collection of information.

-9- In a recent case, Seaton v. Johnson, 898 S.W.2d 232 (Tenn. App.

1995), this court noted the distinction between information and records as it relates

to requests made pursuant to § 10-7-503. The case involved a fatal collision between

a car and a train, and the plaintiffs made a request pursuant to the Public Records Act

that the Tennessee Department of Transportation provide them with certain

"information" with regard to specified railroad crossings. Id. at 233. Included in the

list of information sought by the plaintiffs were the following: 1) the average daily

traffic; 2) the average daily freight train volume; 3) the average daily passenger train

volume; 4) the maximum timetable speed; and 5) the accident history. Id.

The court stated that it was “hindered by the fact that both parties refer

to the ‘release of information’ rather than ‘the production of records for examination.’”

Id. at 236. The information requested was contained in surveys, lists and data

compiled in connection with a federally funded program for the purpose of identifying

and evaluating the safety enhancement of railroad-highway crossings. 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 discovery or admitted into

evidence in a Federal or State court proceeding or considered for other purposes in

any action for damages arising from any occurrence at a location mentioned or

addressed in such reports, surveys, schedules, lists, or data." Id. (quoting 23 U.S.C.

§ 409). Following federal authority, this court determined that the federal statute

protects data as well as documents. In so holding, the court "observed that plaintiff's

letter was not an assertion of the rights guaranteed by Section 10-7-503, but a request

that the defendant search its records for a shopping list of information to be furnished

to plaintiff." Seaton, 898 S.W.2d at 233 (emphasis added). Likewise, the

Tennessean does not request records pursuant to § 10-7-503, but the information

found within NES' existing records.

- 10 - For additional support of its contention that the Public Records Act

makes available "information," the Tennessean points to the code section which

addresses the computer storage of records. Tenn. Code Ann. § 10-7-121 (Supp.

1996) provides as follows:

(a)(1) Notwithstanding any other provision of law to the contrary, any information required to be kept as a record by any government official may be maintained on a computer or removable computer storage media, including CD ROM disks, instead of bound books or paper records if the following standards are met:

(A) Such information is available for public inspection, unless it is a confidential record according to law; . . .

(D) The official can provide a paper copy of the information when needed or when requested by a member of the public.

The thrust of this statute is that it authorizes the computer storage of records so long

as certain conditions are met. The Tennessean emphasizes the fact that the statute

uses the term "information." However, the statute initially refers to "information

required to be kept as a record." Id. § 10-7-121(a)(1). Not only does this phrase

further demonstrate the difference between information and records, but it evidences

an understanding that the open records provision of Title 10, § 10-7-503(a), makes

available "information required to be kept as a record" and not the information itself.

Returning to the statutory definition of "record" at issue here, we note

that records are "made or received pursuant to law or ordinance or in connection with

the transaction of official business by any governmental agency." § 10-7-301(6). The

statute contemplates that the information or data which makes up a record has

already been "made or received." Further, the record has been "made or received"

in furtherance of some business purpose. It is not disputed that the names,

addresses and phone numbers of NES customers have not yet been put into the form

of a document. Moreover, both Mr. Hatridge and Mr. Wheeler testified that NES had

never been in need of nor was it presently in need of such a document in order to

conduct its business. In conclusion, the statutes at issue in this case are

- 11 - unambiguous on their faces. It is clear that the General Assembly intended that

records, and not the information 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 numbers of its customers when such

a record has not already been "made or received" in connection with the business of

NES.

Wisconsin's appellate court addressed an analogous situation in

interpreting its own open records law.3 In George v. Record Custodian, 485 N.W.2d

460 (Wis. App. 1992), a prison inmate made a request under Wisconsin's open

records law for the "disclosure of data. He asked for the number of claims the

[Department of Justice] received in 1988, 1989 and 1990, the number it settled

without litigation as a direct result of notices of claims and the number it disallowed

in the same period." Id. at 462. The inmate's request was denied "on grounds that

the department had no document providing that information and the open records law

does not require the creation of a new record by extracting information from existing

records to satisfy a request." Id. The court agreed that Wisconsin's open records law

"does not require the custodian to collect or compile statistics or create a record for

the benefit of a requester." Id.

In holding as the Wisconsin appellate court did, this court notes the

ramifications of a contrary holding -- that § 10-7-503(a) would require government

agencies to compile new records from the information found in their existing records.

It is reasonably foreseeable that such a holding would greatly strain the resources of

often under-funded and under-employed government agencies. This court does not

believe the legislature intended to impose such a burden. At the same time, we do

3 W isconsin's statute provides that "any requester has a right to inspect any record." W is. Stat. § 19.35 (19 96). "Record" is defined, in part, as "any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been create d or is being kept by an authority. 'Record' includes, but is not limited to, handwritten, typed or printed pages, maps, charts, photographs, films, recordings, tapes (includ ing co m pute r tape s), co m pute r printouts and o ptical disks ." Id. § 19.32(2 ).

- 12 - not mean to preclude a government agency from voluntarily creating a record for the

benefit of a requester. If an agency determines that it can manage the increased

hardship caused by the creation of a record at the request of a certain party, then the

reasons for refusing to impose the burden of mandatory compilation are eliminated.

III.

The second issue raised on appeal is whether the Tennessee Public

Records Act authorizes a governmental agency to charge members of the public who

request access to public records the costs of notifying third parties that the requests

have been made. As relates to NES, this issue is still relevant: the Tennessean can

access the information it desires in the form of the existing records thereby calling into

play NES' notification policy. As stated, the policy requires that notification be sent to

citizens whose personal NES account information has been accessed by an

unauthorized third party. In defending the legality of its records access policy, NES

relies upon Tennessee Code Annotated § 10-7-506(a) (1992) which provides as

(a) In all cases where any person has the right to inspect any such public records, such person shall have the right to take extracts or make copies thereof, and to make photographs or photostats of the same while such records are in the possession, custody and control of the lawful custodian thereof or such custodian's authorized deputy; provided, the lawful custodian of such records shall have the right to adopt and enforce reasonable rules governing the making of such extracts, copies, photographs or photostats.

As the trial judge concluded, this issue hinges upon a determination of

whether charging the Tennessean $86,400 for the cost of notification is a "reasonable

rule governing the making of . . . copies." Id. In asserting that its notification policy

is a reasonable rule under the statute, NES notes that, by requiring personal

notification, the policy balances the public's right to access public records versus their

right to protect themselves from the consequences of another person's access.

- 13 - On the other hand, the Tennessean submits that this is a plainly

incorrect misinterpretation of the Act in that the authority to adopt "rules" does not

imply the authority to impose costs. In addition, the Tennessean asserts that the rule-

making authority conferred by the Act relates to the making of copies of records, not

to the auxiliary efforts to mitigate the effects of producing records. Finally, the

Tennessean points to the provisions following § 10-7-506(a) found in § 10-7-506(c)

which authorize the assessment of costs under narrow carefully defined conditions.

It argues that this specific statute is superfluous if an agency has general authority to

assess costs for any reasonable expenditure under subsection (a).

Initially, we reject the contention that the presence of the provisions for

imposing costs found in § 10-7-506(c) supports the Tennessean's position. Indeed,

we find that the language of subsection (c) is harmonious with NES' interpretation that

§ 10-7-506 authorizes the costs at issue. Section 10-7-506(c) applies only to records

which include computer generated maps or other geographic data and which have

commercial value. It states as follows:

(c)(1) If a request is made for a copy of a public record that has commercial value, and such request requires the reproduction of all or a portion of a computer generated map or other similar geographic data that was developed with public funds, the legislative body of any county to which this subsection applies may establish and impose reasonable fees for the reproduction of such record, in addition to any fees or charges that may lawfully be imposed pursuant to this section. The additional fees authorized by this subsection may not be assessed against individuals who request copies of records for themselves or when the record requested does not have commercial value.

Tenn. Code Ann. § 10-7-506(c)(1)(1992). By its own terms, this subsection

authorizes the imposition of fees in a very specific situation "in addition to any fees or

charges that may lawfully be imposed pursuant to this section." Id. Regarding these

additional fees authorized by § 10-7-506(c)(1), the statute provides the following:

- 14 - (2) The additional fees authorized by this subsection shall relate to the actual development costs of such maps or geographic data and may include:

(A) Labor costs;

(B) Costs incurred in design, development, testing, implementation and training; and

(C) Costs necessary to ensure that the map or data is accurate, complete and current, including the cost of adding to, updating, modifying and deleting information.

Id. § 10-7-506(c)(2)(A)-(C). Clearly, this provision is not intended to cover the costs

for the copying or producing of the records. However, the language contemplates that

there may be other lawful "fees or charges . . . pursuant to this section." Id. § 10-7-

506(c)(1). The only other portion of this section which could be read to authorize fees

or charges is subsection (a)'s "right to adopt and enforce reasonable rules governing

the making of . . . copies." Id. § 10-7-506(a). Therefore, we conclude that

Tennessee Code Annotated § 10-7-506, when read in its entirety, indicates that the

authority to " adopt . . . reasonable 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 reasonableness:

"Reasonableness" is a touchstone of Anglo-American law. It is a concept which takes into account what is "just, proper, ordinary or usual, fitting and appropriate." Black's Law Dictionary (4th ed. rev. 1968). It is a concept which also demonstrates what is vibrant and brilliant about Anglo-American law, particularly the common law, and that is that "reasonableness" is a flexible concept which works for all times and all circumstances to be interpreted based thereon.

NES' notification policy was adopted in an effort to address the safety and privacy

concerns associated with giving out the personal information of its customers. As a

dramatic example of the danger of not notifying a customer that his personal records

have been accessed, NES presented an account of a man who allegedly used this

information from NES to find his murder victim. While we assume that requests

motivated by intentions to inflict bodily harm will be scarce, it is clear that the

Tennessean's request would include many phone numbers which are otherwise

- 15 - unattainable as NES has collected both listed and unlisted numbers in order to install

a system to cope with power outages. Notification would permit those who have

unlisted numbers the opportunity to remove them from NES' records or, in the

alternative, to change their numbers.

Providing the information requested by NES on 292,000 customers for

a total fee of $91,619.00 amounts to only 31 cents per customer. We agree with the

trial court that "[w]hile [the Tennessean] complains that the cost for it obtaining the

information in issue is exorbitant, . . . the information it seeks is voluminous." We find

that in light of the justifications presented for NES' notification policy, this policy

represents a "just . . . and appropriate" rule. We hold therefore that, in adopting this

policy, NES was within its "right to adopt and enforce reasonable rules governing the

making of . . . copies." Id. § 10-7-506(a).

IV.

Finally, we must determine whether the trial court's requirement for

paying the costs of notification has become moot in light of the fact that, subsequent

to the trial court's judgment, NES voluntarily notified its customers of the

Tennessean's request in a monthly issue of Power Notes. By its language, the March

1996 issue of Power Notes did not notify the customers that the information was to

be released as is required by the policy. Instead, the article explained that a request

had been made, that the trial court had ruled that NES must provide the list of its

customers at a cost, and that the Tennessean had failed to comply with the trial

court's order with regard to paying the notification cost. It noted that the Tennessean

might appeal the case and that unhappy customers should contact their state

representatives and express their opinion that the state's public records law should

be amended to exclude customers' personal information.

- 16 - Even if the March 1996 issue of Power Notes failed to notify NES

customers as required by the policy, the Tennessean submits that this article

"demonstrates that NES can provide such notification virtually cost free through its

routine billing procedures, thereby refuting [NES'] assertion that such notification can

be made only at a cost of $86,400." However, the testimony of Ms. Robinson, an

NES employee, was that Power Notes costs $5,128 to print and that adding 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 is not "virtually cost free." Moreover, Ms. Robinson and

another employee, Ms. Corlew, testified that Power Notes is not set up for notifying

NES customers when their personal records have been accessed. Due to the time

it takes to draft, revise, print and mail each issue of Power Notes, information

requested by the public could not be released for 60 days. Furthermore, the purpose

of this publication is not served if NES is required to use it in this way.

Lastly, employees of NES testified that including the notification in

Power Notes would not be as effective as notifying customer by a first-class letter

because not all customers read Power Notes. As stated, NES presented a letter from

a customer complaining that the material included with the bill was "junk mail." We

agree that NES customers are much more likely to read a first class letter than a flyer

which contains information about NES programs and services and non-profit

community events. For the foregoing reasons, we conclude that NES should not be

required to notify its customers pursuant to its notification policy by means of Power

Notes.

In conclusion, we find that NES is not obligated under the Public

Records Act to provide the information in the form requested by the Tennessean.

However, should the Tennessean procure this information through existing records,

it is reasonable for NES to require the Tennessean to bear the financial burden of

- 17 - notifying NES' customers of the access by means of a first class letter as is NES'

policy. The decision of the trial court is therefore reversed in part and affirmed in part

and the cause is remanded to the Chancery Court of Davidson County for any further

proceedings that might become necessary. Tax the costs on appeal to the appellant.

________________________________ BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________ SAMUEL L. LEWIS, JUDGE

_______________________________ WILLIAM C. KOCH, JR., JUDGE

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