At the end of April, the city of Memphis abruptly changed course and closed access to documents that show how the city-owned animal shelter treats the dogs and cats in its care.
The map for making this decision is familiar to those of us in the public records community and gives food for thought to anyone who wants government to be open and accountable to its citizens.
It usually starts with someone in government who does not want particular information in the files revealed. Then there is a call to someone in the government legal department, then to another lawyer and another lawyer until a “case” can be presented to hold the cases.
It doesn’t matter if the reasoning undermines the Public Records Act, which the Tennessee Supreme Court said “plays a critical role in promoting accountability in government through public oversight of government activities.”
The result is that, little by little, the road traveled by some government lawyers nurtures and breeds a culture of occasional disregard for the transparency that citizens deserve and expect.
The only real option for a citizen in the face of this kind of defense of government secrecy is to hire a lawyer and take legal action to try to enforce a law that no one in government will enforce. And, as those who follow this path know, most citizens simply don’t have the time and money.
Here’s what happened in Memphis:
A citizen long-time involved with animal rescue groups in Memphis has requested records relating to a particular animal held by Memphis Animal Services (MAS). These included medical records which would show the treatment of the animal by the city-owned shelter.
But a few months earlier, the director of the animal service, Alexis Pugh, had asked the city’s legal department if such medical records could be withheld.
“The MAS sometimes receives very large requests for animal medical records from people who have no connection to animals, so they are very interested in knowing if there is a legal basis to withhold these records,” the city’s attorney wrote to the state’s Open Records Office. Counsel, an office created to help citizens and government understand the law on public records.
The city’s attorney was investigating whether state law that guarantees the confidentiality of human medical records could also be understood as allowing the city to deny access to animal medical records.
Lee Pope, attorney for the Office of Open Records Counsel (OORC), said “it doesn’t make sense that the provisions (in state law) governing patient records apply. to animal patients, ”but ultimately turned it over to the Tennessee Department. Health, which authorizes veterinarians and veterinary facilities.
Animals have the right to medical confidentiality, according to the state
Paige Edwards, a state health department attorney, told the Memphis Legal Department that animal medical records are not considered public records.
In the opinion of the State, as was confirmed to me in an email sent to me, no distinction exists in law between human and non-human patients with respect to the privilege of patient confidentiality. If you didn’t understand it: Dogs and cats have the same right as humans to keep their medical records private.
This was sufficient for the Memphis Legal Department, and Memphis Animal Services stopped responding to requests for public records that would show the medical treatment its vets were giving (or not giving) to the animals at its shelter.
“As of April 26, 2021, TDOH, in agreement with the OORC, has determined that animal medical records are exempt from disclosure…” Memphis Legal Department told Citizen in an email. (The legal department later said the euthanasia records could be released.)
For those concerned about these animals, it was a big blow.
Under a previous administration, the town-owned shelter was raided by the sheriff’s department as part of an animal cruelty investigation. People were fired and criminal charges were laid. The city has worked to change things. But now a new veil has been lifted to hide behind.
Are animals receiving appropriate medical care? Are they taking pain medication? Or are they left to suffer without her in cages until their date of euthanasia or until someone adopts them? Is the medical diagnosis of certain animals such that it would be more humane to euthanize rather than wait several days for a possible adoption?
And, perhaps more importantly, why does Memphis Animal Services want to hide this information now, after all these years?
Exploiting a Dog’s ‘Privacy’ to Hide the Treatment of a Shelter is Twisted
Memphis Animal Services has an expense budget of $ 4.45 million. In addition to funding from the city, it receives public donations.
Government officials like to control the message about their programs, so they disseminate information when they want and in the context they want. The law on public archives works differently. Citizens have the right to access information contained in public archives, without filter. In this way, the Public Archives Act makes it possible to verify what government officials are saying.
Remarkably, despite the city’s new rationale that animal medical records are just as secret as human medical records, the Memphis shelter still gives medical information in mass emails to rescue groups, in the hope to find someone to adopt sick animals. But if a person asks for medical records on the animals to verify how the shelter treated the animals, the city says it doesn’t have to release them.
A record that documents how a municipal agency treats a dog or cat in its care is the type of public record that encourages accountability for government activities.
Harnessing a dog’s imagined privacy right is a roundabout way to protect the government’s treatment of that dog.
Whose privacy are we protecting? Who do we keep secrets from? The dog or the government dog?
Tennessee government attorneys need a new card. They lost their way.
This is a new monthly column by Deborah Fisher distributed by Tennessee Press Service to Tennessee newspapers. Fisher is executive director of the Tennessee Coalition for Open Government, and her columns will explore the state of government transparency in Tennessee.