As part of its news reporting, Prison Legal News routinely submits public records requests and Freedom of Information Act requests to government agencies. Most of the time they comply with the law and produce the requested records. Not so in Marshall County, Tennessee.

On February 3, 2014, PLN managing editor Alex Friedmann submitted a public records request to then-Marshall County Sheriff Norman Dalton, seeking information concerning the county jail. Specifically, he requested records related to the jail’s phone service contract and mail, grievance and medical policies.

The Sheriff’s Office responded a week later, demanding that Friedmann appear in person to submit his records request. That was contrary to Tennessee’s public records statute, and Friedmann responded that he wanted the records produced via postal mail or email. The sheriff, however, insisted that he “make these request [sic] in person.”

Friedmann then referred the Sheriff’s Office to the “frequently asked questions” page on the website of the state’s Office of Open Records Counsel, which clearly said a request for public records “does not have to be made in person.”

Sheriff Dalton still refused to produce the records, despite a renewed request using a form provided by the Sheriff’s Office.

On March 12, 2014, upon Friedmann’s request, the state Open Records Counsel, Elisha Hodge, informed the county attorney for Marshall County that “[t]he courts in Tennessee have held for a number of years now that a citizen does not have to appear in person in order to make a public records request.” See: Waller v. Bryan, 16 S.W.3d 770 (Tenn.Ct.App. 1999).

Also at Friedmann’s request, the Open Records Counsel issued a formal advisory opinion on April 15, 2014, stating, “to the extent that a requestor is able to sufficiently identify the records for which copies are being requested and has paid all necessary copying, labor and delivery fees associated with producing the requested copies, the requestor is not required to appear in person either to submit a public records request or retrieve the requested records.”

No records were forthcoming, however, and eventually the Sheriff’s Office stopped responding to Friedmann’s repeated requests. Therefore, Friedmann filed a public records suit in Marshall County Chancery Court in May 2014; he was represented by attorney Robert Dalton – the sheriff’s brother.

At trial on June 4, 2014, the county changed its rationale for refusing to produce the records. The refusal was not because Friedmann declined to make the request in person – despite repeated emails from the Sheriff’s Office stating that was the reason – but rather because Sheriff Dalton could not confirm that Friedmann was a Tennessee citizen. The state public records law only applies to citizens, and the sheriff testified that when he drove to the address listed on Friedmann’s driver’s license, he found it was a private mailbox center. He also said he had reported Friedmann to the Tennessee Department of Safety and Homeland Security for not listing a correct residential address on his license.

“The address on Mr. Friedmann’s driver’s license is not a residence,” the county attorney stated. “If he can prove residence, we will comply with the public records act. The request was denied because he did not prove residency.”

However, upon cross-examination, Sheriff Dalton admitted that there was nothing facially wrong with or suspicious about the address on Friedmann’s license, and that he did not check the address until shortly before trial – months after he had repeatedly denied Friedmann’s public records request, and after he was served with the lawsuit. He also said he would not release records to just anyone and specifically noted that Friedmann was a former prisoner.

“He’s an ex-convict,” the sheriff stated. “I’m not going to turn records over to him without referring to the county attorney. I haven’t had anybody make an open records request that I didn’t know. I’ll figure out who he is and where he’s from before I give him access to the records.”

Friedmann testified that he was a Tennessee citizen who had lived in the state for more than 20 years, that the Sheriff’s Office had never notified him there was a problem or issue concerning his residency and that the sheriff’s explanation for refusing to produce the records was a post hoc rationalization. Friedmann’s attorney, Robert Dalton, reminded the court that all Tennessee residents can request public records, including ex-prisoners and even those who are still incarcerated.

“I think that’s very alarming and very disturbing that a law enforcement officer can do a background check, and in this case actually drove in to check my residence in person just because I filed a public records request with his agency,” Friedmann said after the trial.

The court issued a judgment on June 13, 2014, with Chancellor J. B. Cox ruling in favor of Friedmann and ordering the Sheriff’s Office to produce the requested records at no charge, but declining to award attorney fees upon finding the sheriff had not acted in bad faith. Following the ruling, Sheriff Dalton produced the records. See: Friedmann v. Marshall County, Chancery Court of Marshall County (TN), Case No. 17017.

In August 2014, Sheriff Dalton went up for reelection in a contested election. At his own expense, Friedmann ran two half-page ads in local Marshall County papers with the headline, “Why Doesn’t Sheriff Norman Dalton Follow the Law?” The ads described the public records lawsuit and the Chancery Court ruling against the Sheriff’s Office, and concluded, “Why would you vote for a Sheriff who doesn’t follow the law?”

Sheriff Dalton lost the election. Friedmann then contacted the Tennessee Bureau of Investigation and FBI to see if the sheriff had used state or federal criminal databases to run background checks on him, which would have been an abuse of authority, but both agencies denied that any such checks had been requested by the Sheriff’s Office.

Friedmann later appealed the Chancery Court’s judgment to the Tennessee Court of Appeals, challenging the denial of attorney fees. His appellate brief was filed on December 18, 2014, and the appeal remains pending.

Additional sources: www.marshalltribune.com, www.wsmv.com

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