|Legal Opinion: |
Text of Document: August 27, 2003
Re: Code Complaints
Dear Fire Marshal:
Your management consultant has given me your questions about anonymous code complaints. I shall answer them as they appear in your letter.
Question 1. May the City require persons making complaints of code violations to disclose their identity, or can anonymous complaints be made?
Answer. I know of no practical way to enforce a requirement that complainants identify themselves. The City could have a caller identification system, but I suspect that a person wanting to make an anonymous complaint would not use his/her own phone. Also, complaints can be made by mail and other methods that would defy identification of the complainant and could lead to misidentification. There is no law that requires the City to respond to anonymous complaints, so the City could have a policy to that effect. But it seems to me that the City would want to encourage rather than discourage legitimate complaints. If a large percentage of anonymous complaints were not legitimate, this would be a rational basis for a rule saying that the City would not respond to these complaints.
Question 2. Is the City required to investigate anonymous complaints?
Answer. The duty of the fire department and its employees in this respect is the same as the duty of police departments and police officers. There is a public duty to enforce the law, but there is no private duty to individuals unless there is a “special relationship” created between the individual and the City. See Ezell v. Cockrell, 902 S.W.2d 394 (Tenn. 1995), in which the Court found no liability arising from the police chief of Elkton failing to stop an obviously drunk person from driving. The potential liability in a “special relationship” situation would be to the persons who suffer bodily injury or property damage because of the City’s failure to investigate and remedy the complaint, and not to the complainant (unless, of course, he or she is one of these persons).
The state Supreme Court in Matthews v. Pickett County, 996 S.W.2d162 (Tenn. 1999), states three (3) situations that create a special relationship or special duty to an individual:
(1) A public official affirmatively undertakes to protect a person and the person relies on that undertaking;
(2) A statute specifically provides a cause of action against an official or municipality for injuries resulting to a particular class of individuals, of which the plaintiff is a member, for failure to enforce certain laws; or
(3) A plaintiff alleges a cause of action involving intent, malice, or reckless misconduct. 996 S.W.2d at 165.
It would be an extremely unusual situation in which any of these situations would prevail in an anonymous complaint situation. A public official is probably not going to tell an anonymous caller that the City will ensure his or her safety. There is no statute that creates a cause of action against the City or its officials for failure to enforce safety codes. To the contrary, Tennessee Code Annotated, § 29-20-205(3) and (4), grant the City immunity for failure to revoke approvals and permits and failure to do inspections. This immunity alone would protect the City in all these situations. And it would be difficult for an anonymous complainant to establish intent, malice, or reckless misconduct.
In short, there is no duty on the part of the City to protect individuals from harm unless there is a special relationship or special duty created between the City and the individual. It would be difficult to establish this relationship with an anonymous person, and the immunity granted in § 29-20-205 should protect the City from liability.
Question 3. Is the city required to honor the request of a complainant to be anonymous if the complainant gave his/her name?
Answer. There is nothing in the Open Records Law or exceptions to that law that makes this information confidential. Any record created with the complainant’s name on it would be open and accessible to the public. This might be another reason to allow anonymous complaints, since it might have a chilling effect on complaints if the complainant cannot be assured that he/she can be anonymous.
The only situation in which the record might be confidential is if it became part of an active investigative file of the police department. Portions of active police investigative files that are not discoverable in the criminal proceeding are confidential and not open to the public. Statements made by the state’s witnesses are confidential and not discoverable. Rule 16(a)(2) of the Rules of Criminal Procedure. Therefore, if the complainant alleges criminal activities and the fire department turns the complaint over to the police department, the information might be confidential. See Appman v. Worthington, 746 S.W.2d 165 (Tenn. 1987).
Question 4. If the accused person wants to know the name of the complainant, must the City tell him/her?
Answer. The answer to the previous question substantially answers this one. If the name is on a record, it is open to the public. The City does not have to tell the person but will have to let the person look at the record.
Perhaps a better policy than simply not investigating anonymous complaints would be to respond to them on a case by case basis depending on the indicia of reliability in the complaint. A complainant with very specific knowledge about a situation and the dangers posed is more believable than someone who complains in general terms. And a complainant with specific knowledge about a place where there have been similar problems in the past is probably even more reliable. Both these situations might warrant a response to the complaint even though it is anonymous.
I hope this answers your questions. If we may be of further assistance, please contact us.