                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 September 18, 2001 Session

 HAROLD LEE JACKSON v. JIM ROUT, Mayor of Shelby County, ET AL.

               A Direct Appeal from the Chancery Court for Shelby County
            No. CH-00-0776-3    The Honorable D. J. Alissandratos, Chancellor



                  No. W2000-02974-COA-R3-CV - Filed November 26, 2001


        Citizen filed a petition against county mayor, county sheriff, and county commissioner of
public records alleging that he was not furnished the records that he had requested. The trial court
sustained the respondent’s motion to dismiss for failure to state a claim upon which relief can be
granted. Petitioner appeals. We reverse.


   Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Chancery Court Reversed and
                                       Remanded

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY KIRBY LILLARD, J., joined.

Harold Lee Jackson, Pro Se

Donnie E. Wilson, Shelby County Attorney; Renee Allen-Walker, Senior Assistant County Attorney,
For Appellees

                                             OPINION

        Petitioner, Harold Lee Jackson, filed a petition in chancery court pursuant to the Tennessee
Public Records Act against Jim Rout, Mayor of Shelby County, A. C. Gilless, Sheriff of Shelby
County, and Helen R. Wren, Commander of Records and Identification Department of Shelby
County Sheriff’s Office. The petition avers that it is filed pursuant to T.C.A. § 10-7-505 to require
respondents to show cause why he was denied request for access to public records. The petition
alleges that he has reason to believe that while he was incarcerated in the Shelby County jail in 1974
he was subjected to an experiment and described the technology as “nanotechnology.” The petition
alleges that on February 20, 2000, he wrote the sheriff’s office requesting access to public records
related to the alleged experiment. He alleges that he was advised by letter from the sheriff’s office
that a search of the records would be made for $18.00 and that he sent an eighteen dollar money
order for the search. He avers that he received a reply April 6, 2000, but that it “had nothing to do
with my request, so the sheriff of Shelby County jail public information office’s reply was denying
my request.” He avers that the information sent was his criminal arrest record with no information
whatsoever concerning any experiment or anything of that nature. He alleges that the respondents
violated the open records act.

        On May 26, 2000, respondents filed a motion to dismiss pursuant to Tenn.R.Civ.P. 12.02 (6)
for failure to state a claim upon which relief can be granted or in the alternative for summary
judgment. The motion states in pertinent part:

                1. The Complaint fails to state a claim upon which relief may be
                granted.

                2. There is no genuine issue of material fact, and Respondents are
                entitled to summary judgment as a matter of law.

                3. Respondents have no knowledge of “Nanotechnology,” no records
                related to it, nor have Respondents conducted any “Nanotechnology”
                experiments on Petitioner.

                4. The Complaint is frivolous, and is not warranted by existing law
                or facts.

                5. Respondents rely upon their Memorandum submitted to the Court,
                and upon the Affidavit filed with the Court.

       The record does not contain the affidavit referred to in the motion; therefore, the matter is
considered as a 12.02 (6) motion. The trial court’s order specifically provides that the ground for
dismissal is failure to state a claim upon which relief can be granted. The only issue on appeal is
whether the trial court erred in dismissing the petition.

         A motion to dismiss a complaint for failure to state a claim upon which relief can be granted
tests the legal sufficiency of the complaint. It admits the truth of all relevant and material allegations
but asserts that such allegations do not constitute a cause of action as a matter of law. Riggs v.
Burson, 941 S.W.2d 44 (Tenn. 1997). Obviously, when considering a motion to dismiss for failure
to state a claim upon which relief can be granted, we are limited to the examination of the complaint
alone. See Wolcotts Fin. Serv., Inc. v. McReynolds, 807 S.W.2d 708 (Tenn. Ct. App. 1990). The
basis for the motion is that the allegations in the complaint considered alone and taken as true are
insufficient to state a claim as a matter of law. Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975).
In considering such a motion, the court should construe the complaint liberally in favor of the
plaintiff, taking all the allegations of fact therein as true. Cook Uithoven v. Spinnaker’s of
Rivergate, Inc., 878 S.W.2d 934 (Tenn. 1994).




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        T.C.A. § 10-7-503 (Supp. 2000), dealing with the opening of all public records for inspection
by citizens of the state, provides in pertinent part:

               (a) Except a provided in § 10-7-504(f), 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.

                                       *               *               *

       The procedure for enforcing the right of inspection is provided for in T.C.A. § 10-7-505
(1999), which states in pertinent part:

               (a) Any citizen of Tennessee who shall request the right of personal
               inspection of any state, county or municipal record as provided in §
               10-7-503, and whose request has been in whole or in part denied by
               the official and/or designee of the official or through any act or
               regulation of any official or designee of any official, shall be entitled
               to petition for access to any such record and to obtain judicial review
               of the actions taken to deny the access.

               (b) Such petition shall be filed in the chancery court for the county in
               which the county or municipal records sought are situated, or in any
               other court of that county having equity jurisdiction. . . . Upon filing
               of the petition, the court shall, upon request of the petitioning party,
               issue an order requiring the defendant or respondent party or parties
               to immediately appear and show cause, if they have any, why the
               petition should not be granted. A formal written response to the
               petition shall not be required, and the generally applicable periods of
               filing such response shall not apply in the interest of expeditious
               hearings. The court may direct that the records being sought be
               submitted under seal for review by the court and no other party. The
               decision of the court on the petition shall constitute a final judgment
               on the merits.

                                       *               *               *




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         A review of the petition filed in this case reveals that there is no allegation that the petitioner
requested the right of personal inspection of the records, nor is there any allegation that those in
charge of the records refused any right of inspection requested by the petitioner. However, this Court
has previously ruled that strict compliance with the “personal appearance” requirement of the statute
is not required. In Waller v. Bryant, 16 S.W.3d 770 (Tenn. Ct. App. 1999), one of the issues
presented for review was whether the inability of the person seeking the records “to present himself
in person to inspect and request copies of the documents prohibits him from obtaining those copies
if he is otherwise entitled to receive them under the public records act.” In this regard, the Court
said:

                         It is this Court's duty to apply rather than construe the
                 language of the Public Records Act, since the intent of the
                 Legislature is represented by clear and unambiguous language. See
                 Cammuse v. Davidson Co. District Attorney, No. 01A01-9709-CH-
                 00503 (Tenn. App., filed March 24, 1999 [no appl. perm. app.]).
                 While Appellees do not have an obligation to review and search their
                 records pursuant to a Public Records Act request, they do have the
                 clear obligation to produce those records for inspection, unless
                 otherwise provided by state law, and to provide a copy or copies of
                 any such record requested by such citizen, upon the payment of a
                 reasonable charge or fee therefor. See Tennessean v. Electrical
                 Power Board of Nashville, 979 S.W.2d 297, 303 (Tenn. 1998). If
                 the citizen requesting inspection and copying of the documents can
                 sufficiently identify those documents so that Appellees know which
                 documents to copy, a requirement that the citizen must appear in
                 person to request a copy of those documents would place form over
                 substance and not be consistent with the clear intent of the
                 Legislature. The adoption of the Appellees’ position would mean that
                 any citizen who was unable to personally appear before the records
                 custodian would be unable to obtain copies of the documents
                 pursuant to the Public Records Act. This restriction would prohibit
                 all Tennessee citizens who are unable, because of health reasons or
                 other physical limitations, to appear before the records custodian
                 from obtaining copies of public documents pursuant to the Public
                 Records Act. Such a result is not consistent with the clear intent of
                 the Legislature, and this Court will not interpret this statute in such a
                 way as to prohibit those citizens, or those citizens incarcerated, from
                 the rights provided by the Public Records Act. Appellees can fix a
                 charge or fee per copy so as to recover the actual cost of producing
                 and delivering the copies. Id.

Id. at 773-74.



                                                    -4-
        It appears from the exhibits to appellant’s petition in the trial court that identifying data was
furnished concerning the records sought and that the records custodian had agreed to furnish records
for the payment of the fee. Respondents’ motion to dismiss states in part:

                3. Respondents have no knowledge of “Nanotechnology,” no records
                related to it, nor have Respondents conducted any “Nanotechnology”
                experiments on Petitioner.

       No affidavit, nor any other type of sworn testimony was filed by respondents. T.C.A. § 10-7-
505 (c) provides as follows:

                (c) The burden of proof for justification of nondisclosure of records
                sought shall be upon the official and/or designee of the official of
                those records and the justification for the nondisclosure must be
                shown by a preponderance of the evidence.

        Therefore, the complaint states a cause of action upon which relief can be granted. Certainly,
this does not indicate in any way a decision on the merits of the case.

         Accordingly, the order of the trial court dismissing appellant’s petition is reversed, and the
case is remanded to the trial court for such further proceedings as necessary. Costs of the appeal are
assessed against the respondents, Jim Rout, Mayor of Shelby County; A.C. Gilless, Sheriff of Shelby
County Jail; and Helen R. Wren, Commander of Public Records at the Shelby County Jail.

                                __________________________________________
                                W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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