Can the state make handgun carry permit records public but then make it a crime to republish them?

Subject

Opinion No. 13-23, Public Access to Governmental Handgun Carry Permit Information, March 18, 2013

Plain-English summary

After several newspapers used Tennessee public records requests to publish maps of handgun carry permit holders, the legislature proposed two related responses. SB76 and a proposed amendment to SB76 took the same general approach: leave most permit records open to public inspection, but add criminal penalties and civil causes of action to anyone who reproduced or published the records they obtained.

The AG split the analysis. The legislature clearly had the authority to make permit records confidential outright (under Doe v. Sundquist and Thompson v. Reynolds). If the legislature had simply removed the records from the Public Records Act, that would have been straightforward. The U.S. Supreme Court in Houchins v. KQED, Inc. held that the First Amendment does not guarantee a right of access to all information in government control. So a flat confidentiality designation would have survived First Amendment review.

But SB76 and its amendment did something more complex. They left the records open for inspection but criminalized downstream publication. That is the constitutionally hard case. Sorrell v. IMS Health Inc. (2011) explained that "restrictions on the disclosure of government-held information can facilitate or burden the expression of potential recipients and so transgress the First Amendment." The bills' publication bans were broad and content-based, putting them in prior-restraint territory under New York Times Co. v. United States. SB76's criminal misdemeanor for publishing a "compilation" was also vague (what's a compilation?) under Grayned v. City of Rockford. SB76 Amendment's civil cause of action for invasion of privacy ran into Cox Broadcasting Corp. v. Cohn and Bartnicki v. Vopper, which hold that lawful publication of truthful information about a matter of public significance cannot be punished absent a state interest of the highest order.

The AG distinguished Los Angeles Police Dept. v. United Reporting Publishing Corp. (1999) and Amelkin v. McClure (6th Cir. 2003), which both upheld access restrictions on public records. Those cases turned on the government denying access at the front end, not punishing publication at the back end. SB76 and its amendment did the opposite, which was the structural problem.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Tennessee legislature ultimately took a different path on handgun permit records. Whether SB76 or anything resembling it was enacted, and the current public-records status of permit applications, should be checked against the current Tenn. Code Ann. § 10-7-504 and § 39-17-1351 series. The First Amendment doctrines this opinion turns on (prior restraint, content-based scrutiny, void-for-vagueness, the Cox Broadcasting / Bartnicki / Snyder line) are stable.

Background and statutory framework

Tennessee's Public Records Act (Tenn. Code Ann. §§ 10-7-101 to -702) makes all state records open to personal inspection by Tennessee citizens unless otherwise provided. § 10-7-503(a)(2)(A) is the operative open-records command. § 10-7-504 lists categories of records that the legislature has carved out as confidential. The proposals analyzed in 13-23 would have added a new subsection (o) to § 10-7-504 governing handgun carry permit records issued under § 39-17-1351.

SB76 (as originally filed):

• Most handgun carry permit records remained available for inspection and copying.
• Records on revoked permits stayed public.
• Records on non-renewed permits became confidential.
• No person could copy or reproduce more than 15 records (defined as one complete file per permit holder) per day.
• A "compilation" of records (including names and addresses) could be provided only if the recipient signed a written promise not to publish. Violation: Class C misdemeanor, with each publication event a separate offense.
• Law enforcement and child support agencies could receive records for official purposes.

SB76 Amendment:

• Substantially the same access framework.
• Replaced the criminal compilation provision with a broader publication ban. No person who obtained permit information could reproduce or publish any of it, except names of permit holders who had been formally charged with a felony or had engaged in disqualifying conduct, and only up to 15 such names per day.
• Created a civil cause of action for invasion of privacy against the requester (who signed the non-publication statement) and the actual publisher.

The First Amendment framework the AG used:

1. Confidentiality is constitutional. Designating records confidential implicates no First Amendment right of access. Houchins v. KQED, Inc., 438 U.S. 1, 9 (1978).

2. Access restrictions at the front end are constitutional. A state can require specific qualifications or purposes to access government records, as in Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32 (1999), which upheld a California rule that arrest record requesters had to certify a permitted purpose. Amelkin v. McClure, 330 F.3d 822 (6th Cir. 2003), upheld a Kentucky restriction on accident-victim information for the same reason.

3. Publication bans on already-disclosed information are not constitutional, except under narrow circumstances. Sorrell v. IMS Health Inc., 131 S.Ct. 2653 (2011), invalidated a Vermont law that restricted the sale or disclosure of pharmacy data the speaker already possessed. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), and Bartnicki v. Vopper, 532 U.S. 514 (2001), held that publication of lawfully obtained truthful information about matters of public concern cannot be punished absent a state interest of the highest order.

4. Vagueness independently bars enforcement. Grayned v. City of Rockford, 408 U.S. 104 (1972), requires criminal statutes to define their prohibitions clearly. SB76's criminalization of "publication" of a "compilation" did not define compilation, leaving the statute vulnerable.

The AG also flagged a structural problem. SB76's restriction on dissemination applied only to "compilations." It did not apply to individual records. If the privacy interest were really compelling, it should have applied to all records. Under Amelkin and Romer v. Evans, an underinclusive privacy statute calls into question whether the asserted state interest is the real motivation.

Common questions

What's the difference between making records confidential and banning publication?

Confidentiality is a front-end rule. The state never hands the records over. There's no First Amendment problem because there's no right of access in the first place. Publication bans are a back-end rule. The state hands the records over, then punishes you for what you do with them. That second move triggers strict First Amendment scrutiny because the state is regulating speech, not information access.

Why is "compilation" vague?

SB76 didn't define compilation. Is two permit holders a compilation? Twenty? Does it have to be sorted? Searchable? When the statute imposes criminal liability and doesn't tell ordinary people what conduct is prohibited, due process under Grayned and Morales says the statute is void for vagueness.

Could the legislature just make all permit records confidential?

Yes. Under Houchins, the legislature has full authority to designate government records as confidential. The constitutionally clean version of SB76 would have made all handgun permit records (or all records other than those on revoked permits) confidential and not subject to public inspection. The AG noted that HB9/SB108 of the same legislative session took exactly that approach.

What about United Reporting Publishing?

That case allowed California to restrict who could obtain arrest records (and for what purposes), but only at the access point. The state could decide not to disclose at all, or to disclose only to certain qualified requesters. It did not allow California to disclose records and then prosecute the requester for publishing them. SB76 and SB76 Amendment crossed the line the United Reporting court did not cross.

What about the civil cause of action in the amendment?

A civil invasion-of-privacy suit for publishing information the state itself designated public has the same problem. Cox Broadcasting and Bartnicki hold that the press cannot be punished, civilly or criminally, for publishing truthful information lawfully obtained about matters of public concern. The publication of handgun carry permit information would likely qualify under that doctrine.

Citations

Tennessee Public Records Act: Tenn. Code Ann. §§ 10-7-101 to -702 (especially §§ 10-7-503, 10-7-504). Permit statutes: Tenn. Code Ann. §§ 39-17-1351, -1352. First Amendment cases: Houchins v. KQED, Inc., 438 U.S. 1 (1978); Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32 (1999); Amelkin v. McClure, 330 F.3d 822 (6th Cir. 2003); Sorrell v. IMS Health Inc., 131 S.Ct. 2653 (2011); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); Bartnicki v. Vopper, 532 U.S. 514 (2001); Snyder v. Phelps, 131 S.Ct. 1207 (2011); Snepp v. United States, 444 U.S. 507 (1980); Grayned v. City of Rockford, 408 U.S. 104 (1972); City of Chicago v. Morales, 527 U.S. 41 (1999); New York Times Co. v. United States, 403 U.S. 713 (1971). Tennessee cases: Doe v. Sundquist, 2 S.W.3d 919 (Tenn. 1999); Cleveland Newspapers, Inc. v. Bradley County Memorial Hospital Board of Directors, 621 S.W.2d 763 (Tenn. Ct. App. 1981); Thompson v. Reynolds, 858 S.W.2d 328 (Tenn. Ct. App. 1993).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-023.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

March 18, 2013

Opinion No. 13-23

Public Access to Governmental Handgun Carry Permit Information

QUESTION

Does Senate Bill 76/House Bill 388 of the 108th Tennessee General Assembly as originally filed (hereinafter "SB76") or as proposed to be amended (hereinafter "SB76 Amendment") violate the United States Constitution?

OPINION

The General Assembly has the constitutional authority to exempt handgun carry permit information from the requirements of the Public Records Act. To the extent that SB76 and SB76 Amendment would impose broad limits on the distribution or publication of handgun carry permit information that has been opened to public access, such legislation is likely susceptible to facial challenge under the First Amendment and the Equal Protection Clause of the United States Constitution.

ANALYSIS

SB76 would amend the Tennessee Public Records Act, codified at Tenn. Code Ann. §§ 10-7-101 to -702, to restrict the production, distribution, and publication of records related to applications or renewal applications for handgun carry permits issued pursuant to Tenn. Code Ann. § 39-17-1351.

The Tennessee Public Records Act makes all state records open for personal inspection by any citizen of this state unless otherwise provided by state law. Tenn. Code Ann. § 10-7-503(a)(2)(A). There is at present no state law providing that state handgun carry permit records are confidential.

Tenn. Code Ann. § 10-7-504, designates certain governmental records as confidential. SB76, Section 1, amends Tenn. Code Ann. § 10-7-504 by adding a new subsection (o) governing state handgun carry permit records. As proposed, the new subsection makes most permit records available for inspection while capping the number of records one person may copy in a day at fifteen, makes records on revoked permits open, makes records on non-renewed permits confidential, and (as originally filed) creates a Class C misdemeanor for publishing a compilation of permit information if the recipient signed a non-publication agreement. A proposed amendment to SB76 substitutes a broader publication ban with limited exceptions for permits held by persons charged with felonies or who engaged in disqualifying conduct, requires a written non-publication agreement from any requester, and creates a civil cause of action for invasion of privacy against the requester and the publisher.

The General Assembly has the authority to designate governmental records as confidential. Doe v. Sundquist, 2 S.W.3d 919, 926 (Tenn. 1999); Cleveland Newspapers, Inc. v. Bradley County Memorial Hospital Board of Directors, 621 S.W.2d 763, 765 (Tenn. Ct. App. 1981). As the Tennessee Court of Appeals observed, "[i]t was the legislature that opened the door making records public in the first place. Certainly, . . . the legislature could decide that its policy was too broad and close the door on certain records." Thompson v. Reynolds, 858 S.W.2d 328, 329 (Tenn. Ct. App. 1993).

Nor would the General Assembly's decision to declare certain governmental records confidential implicate the free speech guarantee of the First Amendment of the United States Constitution. The United States Supreme Court "has never intimated a First Amendment guarantee of a right of access to all sources of information within government control." Houchins v. KQED, Inc., 438 U.S. 1, 9 (1978).

Accordingly, the General Assembly may make confidential and never subject to production all records and information related to handgun carry permits. Such a decision would survive a rational basis challenge under the equal protection clause, as the State would assert that it has an interest in protecting the privacy of permit holders. SB76 and SB76 Amendment would make confidential only those handgun carry permits records related to permits that have not been renewed. See SB76, Section 1, (o)(2)(B); SB76 Amendment, Section 1, (o)(2)(B). This more narrow class of confidential documents would also likely survive a rational basis challenge.

Other than records related to handgun carry permits that have not been renewed, SB76 and SB76 Amendment do not appear to remove any other governmental records from the scope of the Public Records Act. Accordingly, all other state records related to handgun carry permits would remain open for personal inspection under Tenn. Code Ann. § 10-7-503(a)(2)(A). Both bills, however, place limits on the availability and use of certain permit records that remain open to the public.

SB76 provides that only fifteen records (defined to be the complete file maintained by the state relative to a handgun permit for one person) can be copied or reproduced by one person in one day. Section 1, (o)(3). SB76 further provides that a compilation of information or other records, including names and addresses of permit holders, may be provided only if the recipient signs a written statement that the recipient will not publish the information or allow others to do so, a violation of which is a Class C misdemeanor. Section 1, (o)(4).

SB76 Amendment prohibits a person who obtains permit records or information, including the entire database of handgun permit holders, from reproducing or publishing any of the information unless the records and information indicate that permit holder has been charged with a felony or has engaged in conduct which prohibits such person from being eligible to have a permit; in those limited cases, the person obtaining the information may republish up to fifteen names a day. Section 1, (o)(3). SB76 Amendment requires that any person seeking permit information must sign a statement that the recipient will not reproduce, publish or provide to others for those purposes any of the information. Section 1, (o)(4). SB76 Amendment also creates a cause of action for invasion of privacy against the requester and publisher of permit information. Section 1, (o)(7).

Courts have recognized that a legislature can place certain restrictions on access to governmental records. The United States Supreme Court rejected a constitutional challenge to access restrictions in the case of Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32 (1999). In that case a publishing company challenged a California public records law that required a person requesting the names and addresses of recently arrested individuals from state and local law enforcement agencies to declare under penalty for perjury that the request was being made for one of five statutorily prescribed purposes (scholarly, journalistic, political, governmental, or investigatory) and to not use the address directly or indirectly to sell a product or service. United Reporting Publishing Corp., 528 U.S. at 34-35, 37-41. The Court rejected the argument that the public records law facially violated the company's First Amendment rights.

As to restrictions on the use of government records, the Supreme Court upheld the ability of the federal government to enforce a contract requiring a former CIA agent to submit all writings about the Agency for prepublication review, even when the writings did not disclose classified information. See Snepp v. United States, 444 U.S. 507, 511 (1980).

The restrictions on access and publication contained in SB76 and SB76 Amendment are much broader, however, than more narrowly tailored access and use restrictions that focus on preventing commercial use of government records or preserving the trust relationship between the CIA and its agents. Cf. United Reporting Publishing Corp., 528 U.S. at 40 ("This is not a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses."); Sorrell v. IMS Health Inc., 131 S.Ct. 2653, 2666 (2011) (invalidating a state law restriction of the sale, disclosure, and use of pharmacy information that the speaker already possessed and distinguishing United Reporting Publishing Corp., noting that "restrictions on the disclosure of government-held information can facilitate or burden the expression of potential recipients and so transgress the First Amendment."). Rather, SB76 and SB76 Amendment leave almost all handgun permit records open for public inspection but prohibit most or all reproduction or publication for any purpose of those same records.

Governmental attempts to limit the ability of citizens to publish or disseminate public information for any purpose raise significant First Amendment concerns. See United States v. Playboy Entertainment Group, Inc. 529 U.S. 803, 812 (2000) ("Government's content-based burdens must satisfy the same rigorous scrutiny as its content-based bans."). The scope of this legislative ban on speech related to public records is so broad that the legislation could be characterized as a prior restraint, which would be prohibited by the First Amendment absent the government's ability to sustain the "heavy burden of showing justification for the imposition of such a restraint." New York Times Co. v. United States, 403 U.S. 713, 714 (1971).

A restriction on publication of the breadth found in SB76 and SB76 Amendment would likely be subject to strict scrutiny as an infringement on First Amendment protections on speech. Under strict scrutiny, the State would have to show that the legislation advances a compelling state interest and is narrowly tailored to achieve that interest. See, e.g., R.A.V. v. City of St. Paul, Minn., 506 U.S. 377, 382 (1992). The State interest underlying the proposed legislation is to protect the privacy of persons who have been issued handgun carry permits. Even assuming, however, that this interest would be deemed compelling, a court would likely conclude that it is not narrowly tailored to achieve that interest. Because the permit holder's privacy interest has already been compromised by the State's decision to maintain the permit information as a public record, a court would likely find that the privacy protection achieved by a broad ban on publication would not outweigh the ban's significant burden on First Amendment rights.

Accordingly, the proposed restrictions in SB76, Section 1, (o)(4), which makes publication of any compilation of handgun permit information a criminal offense, and in SB76 Amendment, Section 1, (o)(3), which allows publication only of handgun permit records related to permit holders charged with a felony or who have engaged in conduct which prohibits persons from eligibility to hold a permit and allows only fifteen such records to be published each day, are of suspect constitutionality.

SB76, Section 1, (o)(4) is constitutionally suspect on two further grounds. First, this subsection would only apply the restrictions on dissemination of handgun permit information to persons obtaining a compilation of such information — it does not apply to requestors who seek and receive handgun carry permit information for individual permit holders. See SB76, Section 1, (o)(2) & (3). If the individual handgun carry permit holder information may be received by someone who does not have to state that the information will not be reproduced or published, then a substantial and legitimate state interest in protecting privacy does not seem to be advanced by placing this requirement only on someone who receives the information in compilation form.

SB76, Section 1, (o)(4) is also constitutionally suspect under federal due process standards as being "void for vagueness" since this provision fails to adequately define its prohibitions (such as what comprises a "compilation") and what constitutes a violation. As the United States Supreme Court observed in Grayned v. City of Rockford, 408 U.S. 104, 108-10 (1972), "It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." See also City of Chicago v. Morales, 527 U.S. 41, 56 (1999).

The civil cause of action created by SB76 Amendment is of suspect constitutionality for similar reasons. See SB76 Amendment, Section 1, (o)(7). This remedy creates a civil cause of action "for invasion of privacy" against any person who obtains or disseminates handgun carry permit information in violation of the provisions of SB76 Amendment. However, as the State has designated as public the information that is the subject of the civil cause of action, it is difficult to assert that the State has a legitimate, much less compelling, interest in protecting privacy that would justify the chilling effect on speech created by this cause of action. See, e.g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 533 (1975) (holding that a newspaper that "lawfully obtains truthful information about a matter of public significance" cannot be held liable for invasion of privacy "absent a need to further a state interest of the highest order"). See also Bartnicki v. Vopper, 532 U.S. 514, 526-29 (2001); Snyder v. Phelps, 131 S.Ct. 1207, 1215-20 (2011).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

STEVEN A. HART
Special Counsel

Requested by:
Honorable Brian Kelsey
State Senator
Suite 7, Legislative Plaza
Nashville, TN 37243-0231