                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                              June 28, 2007 Session

               JOHN C. KERSEY, SR., v. JOHN BRATCHER, et al.

                   Appeal from the Chancery Court for Rutherford County
                      No. 05-149IMI    Donald P. Harris, Senior Judge



                  No. M2006-01319-COA-R3-CV - Filed September 14, 2007




                                    CONCURRING OPINION


                I fully concur in Judge Swiney’s Opinion but wish to elaborate on the fact that the
Judge had custody of the file that the plaintiff sought and was charged with safekeeping and
protection of the file.

               As Judge Swiney’s Opinion recites:

               Rather, Plaintiff’s allegations are that Wilson and Bratcher both told Plaintiff that the
               Judge had the File, that Wilson suggested that Plaintiff return another day when the
               File might be available . . .”

               The plaintiff’s Complaint states that he was advised that the case was set the next day,
Friday, and that the file “might” be available Friday afternoon.

                The Dissent concedes there are some exceptions to the Tennessee Public Records Act,
but “none are applicable in this case”. I respectfully disagree with this conclusion. In my view, the
Clerk and Master discharged his duties under the Act when he advised plaintiff that the Judge had
possession of the file and that it would be available for inspection in effect after the case was tried
the next day and returned to the Clerk and Master’s office. Court files are regularly checked out by
attorneys, often for a period of days, and it is a physical impossibility for the Clerk to furnish that
public record on demand until the custody of the file is returned to the Clerk.

               Obviously, the Judge in this case was charged with the custody and could place
reasonable restrictions on the examination of the file by a third party, and while his assistant could
have exhibited a kinder and gentler directive to the plaintiff, the plaintiff himself acknowledges his
own belligerence in the Complaint.

               Clearly, the Clerk and Master discharged his obligation to the plaintiff, since he did
not have physical custody of the file and could not retrieve it, absent the custodial Judge’s
permission. The plaintiff’s Complaint does not state that the judicial assistant to the Circuit Judge
refused to allow him to inspect the Court file.

               The Trial Court acted appropriately in dismissing this Complaint.




                                                      _________________________
                                                      HERSCHEL PICKENS FRANKS, P.J.




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