Hamilton County's chancellors seal records despite law

Hamilton County's chancellors seal records despite law

May 23rd, 2014 by Louie Brogdon in Local Regional News

Hamilton County Chancellor Frank Brown

Photo by Dan Henry/Times Free Press.

Hamilton County's chancellors are seeking a replacement for Clerk and Master Lee Akers. But when asked for the list of applicants, the judges first denied the request on nonlegal grounds, and then ordered the records sealed.

Akers will retire when his term ends in August, and Chancellors W. Frank Brown and Jeffery Atherton started interviewing his potential replacements this month.

The clerk and master keeps records in Chancery Court and issues opinions of law to the court. It is a unique constitutional office, because it's the only one in the county whose occupant is appointed by two other elected officials rather than elected by the public.

Brown cited that as a reason to prevent the public from scrutinizing the selection process -- along with a claim that disclosing the names of the attorneys seeking the $103,795-a-year job could jeopardize their current employment.

When asked May 15 for applications submitted by people seeking the post, Brown said in a written response May 17 that Akers was custodian of the list, and the court doesn't believe the public has a right to the names.

Further, he said, media should offer the same confidentiality to candidates for the clerk and master post that it gives to victims of rapes and other sexual assaults, although he didn't say why those two groups were analogous.

But Elisha Hodge, open records counsel for the state of Tennessee, says the Open Records Act doesn't exempt applicants for public office.

"Resumes, applications, references and other records related to potential employment constitute public records in Tennessee," Hodge said in an email.

There are exceptions -- but only for audited associations and nonprofits holding records as part of a hiring process for a public board, according to the law.

The chancellors are not a nonprofit. And naming the clerk and master is a part of their regular job, for which they are paid by taxpayers.

Deborah Fisher, executive director of the Tennessee Coalition for Open Government, also said the whole situation is suspect.

"We expect judges to uphold the law, and that includes the Tennessee Open Records Act and the Tennessee Open Meetings Act," Fisher said. "If they are going to start citing nonlegal reasons as exceptions to the Open Records Act, then it just says they are looking for reasons to get around it."

On the same day Brown deferred the records request to Akers, he and Atherton used their collective judicial power to order the application materials sealed. Even if the records were legally open to public inspection, the court would not release them, according to the order.

"... It appearing that under the circumstances interests of privacy of the inquiring individuals in the documents and related information, even if considered 'public records,' outweigh the public's right to know," the chancellors wrote.

That move was especially strange to Fisher.

"There's no trial here that these judges are trying to ensure is fair. This seems to be a use of a court procedure for a very unusual purpose -- which is to keep secret applicants for an important public position," Fisher said.

Brown reportedly sought legal advice from the state's attorney general's office on the issue. But representatives from the attorney general's office did not return calls or emails Wednesday to discuss the sealing of open records.

Contact staff writer Louie Brogdon at lbrogdon@timesfreepress.com or at 423-757-6481.