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BY DEBORAH FISHER
In late April, the city of Memphis abruptly changed course and shut down access to records that show how the city-owned animal shelter treats the dogs and cats in its care.
The map to reach this decision is familiar to those of us in the public records community and sobering to anyone who wants government to be open and accountable to its citizens.
It usually starts with a person inside government who doesn’t want particular information in the records to be revealed. Next is a call to someone in the government’s legal department, and then another lawyer and another lawyer until a “case” can be made to withhold the records.
It often does not matter if the reasoning undermines the public records law, which the Tennessee Supreme Court has said “serves a crucial role in promoting accountability in government through public oversight of governmental activities.”
The result is that, bit by bit, the well-traveled path by some government lawyers feeds and breeds a culture of casual disregard for the transparency citizens deserve and expect.
A citizen’s only real option in the face of this type of defense of government secrecy is to hire a lawyer and file a lawsuit to try to enforce a law that no one inside government will enforce. And, as those who follow this road know, most citizens just don’t have the time and cash.
Here’s what happened in Memphis:
A citizen long involved with animal rescue groups in Memphis asked for records related to a particular animal kept by Memphis Animal Services (MAS). These included medical records that would show the treatment of the animal by the city-owned shelter.
But a few months earlier, the animal service’s director, Alexis Pugh, had asked the city’s legal department whether such medical records could be withheld.
“MAS sometimes receives very broad requests for animal medical records from people who have no connection to the animals, so they are very interested in whether there is a statutory basis for withholding these records,” the city’s attorney wrote to the state’s Office of Open Records Counsel, an office created to help citizens and government understand the public records law.
The city’s attorney was probing whether the state law that provides privacy for human medical records could also be understood to allow the city to deny access to animal medical records.
Lee Pope, the attorney in the Office of Open Records Counsel (OORC), said “it does not make sense that the provisions (in state law) governing patient records would apply to animal patients,” but he ultimately deferred to the Tennessee Department of Health, which licenses veterinarians and vet facilities.
Animals have right to medical confidentiality, state says
Paige Edwards, an attorney for the state health department, told the Memphis law department that animal medical records are not considered public records.
As the state sees it, as confirmed in an email to me, no differentiation exists in the law between human and non-human patients when it comes to a patient’s privilege of confidentiality. If you didn’t catch that: Dogs and cats possess a right equal to humans to keep their medical records private.
This was enough for the Memphis legal department, and Memphis Animal Services stopped fulfilling public records requests that would show medical treatment that its vets were giving (or not giving) to animals in its shelter.
“Effective April 26, 2021, the TDOH in congruence with the OORC determined that animal medical records are exempt from disclosure…” the Memphis law department told the citizen in an e-mail. (Later, the law department said euthanasia records could be released.)
For people concerned about such animals, this was a blow.
Under a previous administration, the city-owned shelter was raided by the Sheriff’s Department in an animal cruelty investigation. People were fired and criminal charges were filed. The city worked to turn things around. But now a new veil has been dropped to hide behind.
Are animals receiving proper medical care? Are they getting pain medication? Or are they being left to suffer without it in cages until their euthanasia date or until someone adopts them? Is the medical diagnosis of some animals such that it would be more humane to euthanize rather than wait several days for a possible adoption?
And, perhaps most importantly, why does Memphis Animal Services want to hide this information now, after all these years?
Memphis Animal Services has a $4.45 million expenditure budget. In addition to city funding, it gets public donations.
Government officials like to the control the message about their programs, so they release information when they want and in the context they desire. The public records law operates differently. Citizens have the right to access information in public records, unfiltered. In this way, the public records law provides a check on what government officials say.
Remarkably, despite the city’s new reasoning that animal medical records are just as secret as human medical records, the Memphis shelter still gives out medical information in mass emails to rescue groups, hoping to find someone to adopt sick animals. But if a person were to ask for animal medical records as a check on how the shelter treated animals, the city says it doesn’t have to release them.
A record that documents how a city-owned agency treats a dog or cat in its custody is the type of public record that promotes accountability of government activities.
Exploiting an imagined right of privacy of a dog is a twisted way to shield the government’s treatment of that dog.
Whose privacy are we protecting? Whose secrets are we keeping? The dog’s or the government’s?
The government’s lawyers in Tennessee need a new map. They have lost their way.
(Deborah Fisher is executive director of Tennessee Coalition of Open Government. This column is part of a monthly series that explores transparency in government in Tennessee. More information at www.tcog.info.)