40-32-101 - Destruction or release of records. - Tennessee Statutes

40-32-101. Destruction or release of records.

(a)  (1)  (A)  All public records of a person who has been charged with a misdemeanor or a felony shall, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person, if:

                (i)  The charge has been dismissed;

                (ii)  A no true bill was returned by a grand jury;

                (iii)  A verdict of not guilty was returned, whether by the judge following a bench trial or by a jury; or

                (iv)  The person was arrested and released without being charged.

          (B)  A person applying for the expunction of records because the charge or warrant was dismissed in any court as a result of the successful completion of a pretrial diversion program pursuant to §§ 40-15-102 40-15-107, shall be charged the appropriate court clerk's fee pursuant to § 8-21-401 for destroying such records.

          (C)  A person applying to a court after October 1, 1998, for the expunction of the persons records following the successful completion of a judicial diversion program authorized by § 40-35-313 shall be charged a fee of fifty dollars ($50.00). The fee shall be transmitted and used in the manner set out in § 40-35-313(d)(2).

          (D)  Notwithstanding the provisions of subdivisions (a)(1)(B) and (C), the records of a person who successfully completes a pretrial diversion program pursuant to §§ 40-15-102 40-15-107, or a judicial diversion program pursuant to § 40-35-313, shall not be expunged pursuant to this section, if the offense for which the person was diverted was a sexual offense as defined by § 40-39-202, or a violent sexual offense as defined by § 40-39-202.

          (E)  A person shall not be entitled to the expunction of such person's records in a particular case if the person is convicted of any offense or charge, including a lesser included offense or charge.

     (2)  All public records of a person required to post bond under § 38-3-109 or § 38-4-106 [repealed] shall be removed and destroyed as required by this chapter upon the expiration of any bond required, if no surety on the bond is required to fulfill the obligations of the bond.

     (3)  Upon petition by a defendant in the court that entered a nolle prosequi in the defendant's case, the court shall order all public records expunged.

     (4)  For purposes of this section, “court” includes any court exercising juvenile jurisdiction.

     (5)  All public records concerning an order of protection authorized by title 36, chapter 3, part 6, which was successfully defended and denied by the court following a hearing conducted pursuant to § 36-3-605, shall, upon petition by that person to the court denying the order, be removed and destroyed without cost to the person.

(b)  (1)  “Public records,” for the purpose of expunction only, does not include arrest histories, investigative reports, intelligence information of law enforcement agencies, or files of district attorneys general that are maintained as confidential records for law enforcement purposes and are not open for inspection by members of the public and shall also not include records of the department of children's services or department of human services that are confidential under state or federal law and that are required to be maintained by state or federal law for audit or other purposes. Whenever an order of expunction issues under this section directed to the department of children's services or department of human services, the department shall notify the defendant if there are records required to be maintained as directed above and the basis therefor. The department shall delete identifying information in these records whenever permitted by state or federal law. These records are to be expunged whenever their maintenance is no longer required by state or federal law.

     (2)  “Public records”, for the purpose of expunction only, does not include appellate court records or appellate court opinions.

(c)  (1)  Release of confidential records or information contained therein other than to law enforcement agencies for law enforcement purposes shall be a Class A misdemeanor.

     (2)  This section shall not be construed to deny access to any record to the comptroller of the treasury or the comptroller of the treasury's agent for purposes of audit investigation; the comptroller of the treasury or the comptroller of the treasury's agent having this access shall protect the confidential nature of the records that are not otherwise public under other statutes.

     (3)  Release of arrest histories of a defendant or potential witness in a criminal proceeding to an attorney of record in the proceeding shall be made to the attorney upon request.

(d)  (1)  Any court ordering the expunction of a person's public records of a criminal offense, including orders issued as a result of the successful completion of a diversion program pursuant to §§ 40-15-105 and 40-15-106 or judicial diversion program, shall send or cause to be sent a copy of the expunction order to the Tennessee bureau of investigation for entry into its expunged offender and pretrial diversion database. The order shall contain the name of the person seeking expunction, the person's date of birth and social security number, the offense that was dismissed, the date and cause of the dismissal and the date the order of expunction is entered.

     (2)  After April 25, 2000, a defendant petitioning a court for expunction of records because the charge against the person was dismissed as a result of the successful completion of a diversion program pursuant to §§ 40-15-102 40-15-106 shall be assessed a fifty dollar ($50.00) fee. The fifty dollar ($50.00) fee shall not apply to any case where there has been an acquittal, nolle prosequi, or dismissal for failure to prosecute or where the law does not require a copy of the expunction order be sent to the Tennessee bureau of investigation. The fee shall be transmitted by the clerk of the court to the state treasurer for deposit in a special fund to be used by the Tennessee bureau of investigation for the exclusive purpose of establishing and maintaining the expunged criminal offender and pretrial diversion database. The moneys received in the fund shall be invested for the benefit of the fund by the state treasurer pursuant to § 9-4-603. Amounts in the fund shall not revert to the general fund of the state but shall, together with interest income credited to the fund, remain available for expenditure in subsequent fiscal years.

(e)  It is the intent of the general assembly that no fee ever be charged a person who is petitioning a court for expunction of records because:

     (1)  The charge against the person was dismissed for a reason other than the successful completion of a diversion program pursuant to §§ 40-15-102 40-15-106 or § 40-35-313;

     (2)  A no true bill was returned by a grand jury;

     (3)  A verdict of not guilty was returned, whether by the judge following a bench trial or by a jury; or

     (4)  The person was arrested and released without being charged.

(f)  (1)  All public records of a person who has been charged and convicted with a misdemeanor or felony while protesting or challenging a state law or municipal ordinance whose purpose was to maintain or enforce racial segregation or racial discrimination shall, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person, if:

          (A)  The charge has been dismissed;

          (B)  A no true bill was returned by a grand jury;

          (C)  A verdict of not guilty was returned, whether by the judge following a bench trial or by a jury;

          (D)  The person was arrested and released, without being charged; or

          (E)  (i)  Thirty-seven (37) years or more have elapsed since the date of conviction for the offense being expunged and the petitioner has not been convicted of any other offense, excluding minor traffic violations, during that period of time;

                (ii)  Any period of supervision due to conviction has been completed;

                (iii)  The offense was a misdemeanor, Class C, D or E felony not otherwise excluded pursuant to subdivision (f)(1)(E)(iv), or, if committed prior to November 1, 1989, would be an included Class C, D, or E felony if committed after November 1, 1989;

                (iv)  The offense was not a Class A or Class B felony or a Class C felony described in § 40-15-105(a)(1)(B)(iii), a sexual offense described in § 40-15-105(a)(1)(B)(ii), or an offense prohibited by title 55, chapter 10, part 4, vehicular assault as prohibited by § 39-13-106, or if committed prior to November 1, 1989, would not be an excluded offense if committed after November 1, 1989; and

                (v)  The district attorney general is served a copy of the petition for expungement by certified mail, return receipt requested, and the district attorney general does not file an objection with the court within twenty (20) calendar days of receipt of the petition.

     (2)  All public records of a person required to post bond under § 38-3-109 shall be removed and destroyed as required by this section upon the expiration of any bond required, if no surety on the bond is required to fulfill the obligations of the bond.

     (3)  Upon petition by a defendant in the court that entered a nolle prosequi in the defendant's case, the court shall order all public records expunged.

     (4)  For purposes of this subsection (f), “court” includes any court exercising juvenile jurisdiction.

     (5)  If the person charged or convicted is deceased, the petition may be filed by a person who is able to establish legal authority to act on the behalf of the deceased person.

     (6)  Notwithstanding any law to the contrary, upon request of the petitioner, records or documents subject to the destruction requirement of this subsection (f) that are utilized exclusively for education purposes and are displayed in public museums, libraries, and buildings are exempt from the destruction requirement.

[Acts 1973, ch. 318, § 1; 1975, ch. 193, § 1; 1976, ch. 790, § 1; 1977, ch. 161, § 1; 1978, ch. 736, § 1; 1980, ch. 892, § 1, 2; 1982, ch. 756, § 1; T.C.A., §§ 40-2109, 40-4001; Acts 1987, ch. 335, §§ 1-4; T.C.A., § 40-15-106; Acts 1996, ch. 1079, § 127; 1997, ch. 455, § 1; 1998, ch. 1036, § 1; 1998, ch. 1099, § 7; 1999, ch. 496, § 1; 2000, ch. 645, §§ 3, 5; 2000, ch. 664, §§ 1-3; 2002, ch. 495, §§ 1-4; 2003, ch. 50, § 1; 2003, ch. 175, § 1; 2005, ch. 429, § 12; 2006, ch. 650, §§ 1, 3; 2007, ch. 363, § 2.]