Tennessee’s Open-Government Laws Are Outdated and in Danger of Being Undermined

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If knowledge is power, we should all be superheroes.

Perhaps no one in this information age has more knowledge about us, our families, and our livelihoods than the government. And legally, most of that information is ours, too, because we pay the taxes that make our government run. The information kept in public records can reveal things we didn’t even know about our own lives.

For example, government documents can tell us where we are most likely to get into a car accident on the way to work, how many weapons are found at our child’s school, whether our neighborhood is getting city sewer service, and even how much of our yard will be torn up when the pipes are installed.  

You can find out lots about other people, too. How much did the house next door sell for? Did your mayor pay his taxes? Did he use your taxes to take a trip to Hawaii? In theory, public records can answer those questions, too.

But only if you can see them.

Tennessee law gives residents a right to see most government records and attend meetings where elected officials and other “deliberative bodies” make decisions. The rules, which are sprinkled throughout many different sections of the state code, are referred to as “sunshine laws” because they shine a light on the workings of government, empowering voters to influence decisions. But the weather seems to be clouding.

In the first four months of this year, Knoxville has seen open meetings violations by its 911 board, including the police chief and sheriff; the state Legislature has acknowledged that most of its committees have been regularly holding secret “pre-meetings”; and legislators floated about 25 bills that either attempted or succeeded in reducing public access to records and meetings. Over the last year, several local governments across the state lost high-profile court cases because they “willfully” withheld documents from the public, and still others got away with illegally charging for people to simply look at public records.

The light is getting dim.

Outdated aspects of Tennessee’s sunshine laws cloud things further. Before the digital age, “documents” were all assumed to be pieces of paper in a file. “Meetings” were when people spent time in the same room together.

Now most files are kept electronically and business is done by email, video conference, or even text message. Plus, electronic data often attaches reams of coded information about when files were created and who updated them, where photographs were taken, and more.

Ann Butterworth, Tennessee open records counsel , says a growing number of conflicts arise over when leaders can communicate with each other digitally about public issues, and how they share digital information with the public.

“[The Open Records Act] is somewhat of a law focused on paper records that is now attempting to deal with the current universe,” Butterworth says. At the request of legislators, Butterworth will hold hearings this summer about updating the act. This plan took shape in the wake of controversy over a bill that would have allowed local governments to charge residents just to look at records.

“I think anything the Legislature looks at hopefully will anticipate that the landscape of public records will be changing even faster in the future,” Butterworth says.

The majority of people who check out public records are Regular Joe citizens. The Office of Open Records Counsel, a division of the state Comptroller of the Treasury, fields questions about Tennessee sunshine laws and sometimes runs interference between deadlocked governments and citizens. About half of those who contact the open records counsel for help are members of the general public, Butterworth says. She estimates that 40 percent more are government officials seeking guidance about public records and open meetings, and the remaining 10 percent are reporters.

The thirst for public information—or, perhaps, the difficulty in getting it—is growing. When the office of Open Records Counsel was created, Butterworth says, it received about 600 inquiries a year. During the past 12 months, there have been 1,800, says Butterworth, who took over the job in October.

It’s not even her only job. She is also the assistant to the state comptroller for finance.

If negotiation can’t resolve a conflict over the sunshine laws, citizens are left with two (lousy) choices: walking away empty handed, or suing for information. And unlike many states, Tennessee provides no penalties for governments or elected officials who flout sunshine laws.

Just a few weeks ago, a judge ruled in favor of Gov. Bill Haslam’s administration after it denied a request from a tax attorney seeking the release of a business tax study. In response to the lawsuit, state Revenue Commissioner Richard Roberts argued that the study process did not culminate in a single document, and he refused to release individual ones because they could be taken out of context. The Associated Press quoted Roberts claiming in an affidavit that he has wide latitude to deny information requests based on what is “in the best interests of the state,” an exemption to the sunshine law we have yet to locate. Sometimes transparency is kind of opaque.

Sometimes it’s less like sunshine than Morse code flashing in the dark.

Open Records: The Writing on the Wall

SState4The most significant new limit proposed to Tennessee’s public records access this year was in a bill sponsored by Rep. Steven McDaniel, R-Parkers Crossroads, and Sen. Jim Tracy, R-Shelbyville, on behalf of the Tennessee School Boards Association. It would have allowed a “reasonable” charge for viewing records that took more than an hour to gather. Tracy did not return phone calls for this article.

The bill was driven by a concern that some broad information requests are deliberately used as a form of harassment. An example repeatedly given is a request by a parent to the Williamson County school board that was so large the board considered hiring a contractor to handle it.

Transparency is important, Butterworth emphasizes, but, “There does need to be consideration of the cost of transparency. If every Tennessee citizen went to every government to ask for a record, we could shut down government in Tennessee.”

David Connor, executive director of the Tennessee County Services Association, says he doesn’t think burdensome record requests are a widespread problem, although he has heard anecdotes about politically-motivated efforts to cripple an office with a broad request. “There’s probably a way to go at it by restricting people from harassing an office or official, rather than charging for the inspection of records,” he says.

Officials with the City of Knoxville, Knox County, and Knox County Schools say they haven’t encountered excessive records requests, although they see the potential.

“We want to be as open as possible and we don’t want to put up a lot of barriers to people getting the information they need,” says Knoxville Mayor Madeline Rogero. “But we do need to be able to do our day-to-day business …. I don’t know where the magic balance is.”

School board member Lynn Fugate, who also serves on the board of the Tennessee School Boards Association, suggests that any new law should include a specific definition of an “excessive” request. She says it’s best the bill didn’t pass without broader study. “It was sort of like taking a sledgehammer to put in a nail,” Fugate says. “So let’s find the right tool to deal with the right abuse.”

The City of Knoxville does not receive requests that lead to significant charges, says Communications Director Jesse Mayshark. (The largest in the last three years was probably about $150, city officials agreed.) But it does receive a large number of smaller requests from former Knoxville Mayor Victor Ashe, who writes a column for The Shopper. None take more than an hour, “It’s just that there are so many of them,” Mayshark says. In addition, a local attorney has also started filing many formal requests on behalf of an anonymous client, many of them almost identical to Ashe’s, Mayshark says.

Requests can require expertise to gather (for example, a technology professional to search all the emails on a server) or to remove protected personal information like Social Security numbers. Currently, local governments can charge for an employee’s time to do this only when the requester wants copies and the work takes more than an hour. (The law was written when “copies” meant someone standing in front of a photocopier. Now many copies are provided in PDF format via email, but governments can still charge for them.)

The bill as proposed would not have stipulated whose salary would be used to figure out a “reasonable” hourly rate for gathering public records to view. Often an attorney is in charge of removing protected information, and those salaries are among the highest.

Deborah Fisher, executive director of the Tennessee Coalition for Open Government, says charging for access to public records can create a scenario where only people with deep pockets can afford to see them.

“We also don’t want a situation where fees might be used by a government official as a way to block access,” she says. “(Public records are) a responsibility of government. But if governments see it as a burden, I don’t think being able to charge citizens per hour and create a new revenue stream is going to prompt a local government to look for ways to be more efficient.”

Knox County Commission Chairman Brad Anders didn’t much favor the concept, either. “I don’t think we should punitively charge people to look at things,” he says.

Local and state governments have already been trying to do that, even without the law on their side. Just last week the Tennessee Benefits Administration agreed to stop trying to charge The Tennessean newspaper $1,500 to inspect records showing how much taxpayers are forking out to subsidize insurance for state lawmakers who voted down Gov. Bill Haslam’s plan to subsidize health care for the poor.

And late last year, the Electric Power Board of Chattanooga got away with charging a college student $1,767 to look at records it didn’t even produce until long after payment. According to a summary by the Tennessee Coalition for Open Government, the state Office of Open Records Counsel informed the utility it was violating the law. But the power board disagreed and refused to refund the money.

These kinds of battles led groups like the Tennessee Press Association and the Tennessee Coalition for Open Government to oppose new fees for examining records. An amendment was considered that would have offset the change with another to let in more light: giving local governments five business days instead of seven to respond to an information request. “It would have tried to improve some of the problems citizens see on delays of records,” Fisher says.

Given the complexity of the issues, sponsors pulled back the bill and asked Butterworth and the Advisory Committee on Open Government to hold hearings over the summer, leading to a recommendation to the Legislature by January 15. The advisory committee includes 17 representatives from government, citizens and the press.

“What we’re looking for is to have some robust discussion of these real issues over the summer, so if something comes back next year, it will really make some strides for transparency but also answer local governments’ questions about how they can respond to big requests with the least amount of cost,” Fisher says.

Open Meetings: Cracking the Door

SState2This winter, a 911 radio contract led some Knoxvillians to flash back to “Black Wednesday” of 2007, when Knox County commissioners made deals outside a public meeting, appointing cronies to office. Those shenanigans drew national attention and made most Knoxville politicians hypersensitive to open meetings requirements, especially the rule barring members of a governing body from discussing its business outside meetings.

In January, a Knoxville News Sentinel public records request revealed that members of the Knox County E-911 board, including law enforcement officers, had violated open meetings laws by discussing a multi-million dollar emergency radio contract in private meetings and emails. Knoxville’s law director acknowledged that board members colluded ahead of time to essentially kill a contract deal without discussion or a vote.

Rogero, a member of the board, had been sending a proxy to serve on her behalf. She says this led her to forget at least once that she couldn’t receive emails about the contract from Knoxville Police Chief David Rausch outside 911 board meetings. (She has since begun attending the meetings herself.) Last week the News Sentinel reported that the 911 board agreed, at Rogero’s request, to ask attorneys to clarify Open Meetings Act requirements for a key committee made up of emergency response officials who use the 911 radios.

Knox County Sheriff J.J. Jones has denied his discussions and emails with Rausch about the contract broke the law. He wrote in an editorial rebuttal to the Knoxville News Sentinel on the sheriff’s department web site, stating that he believes the open meetings law needs to be revisited “when a major media outlet manipulates it.” Jones declined to speak to the Knoxville Mercury for this story because the radio contract is still under discussion.

Rogero says she believes at least some of the 911 board members, particularly those who were appointed rather than elected, did not realize the board had to follow sunshine laws.

The experience led Rogero to ask the city’s law department to identify all the “deliberative bodies” of the city, or boards on which city representatives serve, that must follow the open meetings law. She says she was shocked at how many qualified, because the law also covers groups like the Greenways Commission that advise public boards.

The city is requiring sunshine law training for all employees who serve on these boards, as well as the boards’ attorneys. The city is also offering it to boards it doesn’t control, Rogero says.

Fisher said most open meetings violations could be easily avoided with this kind of training of public officials, who may need reminding that the law applies to texts and emails, too.

That is becoming more relevant even during meetings, when board members could text each other “in private” about the topic being discussed aloud (a practice Rogero, Fugate, and Anders all agreed would violate the law).

Although she doesn’t believe texting has been a problem on her board, Fugate says it might be wise to eventually require elected officials to check their devices at the door. “Any kind of tech that could be perceived or could actually be used as a way to circumvent the law is probably something they need to take a look at,” she says.

Some local officials have set up private email accounts to handle contacts from constituents. Anders and Fugate cited the recent Hillary Clinton email scandal—in which the former secretary of state used a private email server to store official emails—as an example of why this is not a good idea. A government can’t produce emails stored on a private server in response to an open records request. Even if nothing sneaky is intended, that’s hard to prove to the public.

“Citizens want and deserve a chance to understand why decisions are being made by local governing bodies, and best way to do that is to have open discussions,” Fisher says. “That improves trust and confidence, and could maybe even improve the decision-making.”

The Tennessee House of Representatives faced some loss of public trust last month when reporters discovered most House committees and subcommittees were holding secret “pre-meetings” to discuss legislation. No crimes were committed, because the General Assembly has always exempted itself from the very sunshine laws it required for local governments. Still, for politicians, perception is reality—and it didn’t look great. Speaker Beth Harwell, R-Nashville, asked committee and subcommittee chairs to start letting the public know about pre-meetings and allowing outsiders in.

More local government meetings could have been closed, too, under a bill sponsored by Republican Sen. Jack Johnson. He says officials with his hometown of Franklin asked for a law change to allow closed meetings (“executive sessions”) to consider real estate purchases. He says they were concerned that discussing specific property in public would drive up its price.

Johnson worked with the Tennessee Press Association to craft the bill. In exchange for agreeing to support it, the association asked for requirements which would have lit a candle for openness: Boards would have to notify the public before holding an executive session, begin the meeting in public, give a reason for closing it, and hold a vote to do so.

Under an amendment added to the bill, these requirements would have also applied for the first time to meetings that are closed for the purpose of discussing a pending lawsuit. The legal right for boards to consult their lawyer about this behind closed doors was established through a court case, says Frank Gibson, public policy director for the Tennessee Press Association. In the absence of clear state law, boards can discuss lawsuits without notifying the public that they will be together at all.

“We tried to get it in code in 2007, and we got the shit kicked out of us,” says Gibson, who literally wrote the book on Tennessee’s sunshine laws, Keys to Open Government.

It didn’t go much better this time. Sen. Johnson says the City of Franklin objected, claiming it needed to be able to have closed meetings about lawsuits on short notice without notifying the public. “They said the bill would do more harm than good,” he says, so he’s going to see that it dies.

Knox County Commission Chairman Brad Anders says he doesn’t see the need to close meetings dealing with real estate purchases. “If we’re looking to build something, like a school for example, the public knows it anyway because it’s in the capital plan,” says Anders, who with other commissioners will soon be considering the Knox County school board’s request to fund several new schools. “I really don’t see how you facilitate the public not knowing you’re trying to plot something.”

Anders adds that the public should be notified of all meetings beforehand, even those that will be legally closed. “I don’t think you should do anything that the public doesn’t know about,” he says.

Put It on my Bill

SState3Although the sweeping bills to carve away at open government protections failed, plenty of others passed.

“There have been a remarkable number (of bills) this year that have protected information,” says state Rep. Bob Ramsey, R-Maryville, who serves as a non-voting member of the state’s Advisory Committee on Open Government.

Some of the new exemptions passed by the Legislature this session were no-brainers, like protecting bank account and credit card information kept by the state and Social Security numbers held by county trustees.

Others that passed (although some of these still await the governor’s signature at press time) would newly hide a variety of specific records from the public eye: job performance evaluations of state university and other specific state employees, email addresses collected by the state’s Division of Business Service, consumer-specific water usage information, medical records kept by state claims offices, and the records of notaries who do not charge for their services.

The bill to cloak business emails was an effort to save the Secretary of State $117,000 a year in the cost of mailing out 250,000 annual renewal notices to corporations, Ramsey says. Businesses might not agree to have the notices emailed if those emails were public, he says.

The University of Tennessee requested privacy for job performance evaluations, says Ramsey, who sponsored that bill in the House. Senate sponsor Ken Yager,R-Kingston, did not return repeated phone calls.

The performance evaluations of many state civil service employees became secret several years ago. The same exemption will now apply to employees of state colleges and universities, the secretary of state, treasury comptroller, and state treasurer. The law will presumably protect Yager’s own job evaluations because he is an assistant professor at Roane State Community College.

Anthony Haynes, vice president for government relations and advocacy for the UT system, says job evaluations haven’t been used effectively because managers feared hurting employees by creating a critical public record.

“There’s a belief that at some point in time the employee should be afforded some level of privacy,” he says. “So problems get handled verbally and if a manager leaves, there is no record to help continue the improvement,” he says.

However, Fisher says making evaluations secret removes some government accountability, especially if past employee performance raised red flags. For example, if a professor is caught in an inappropriate relationship with a student, old performance evaluations might show whether it happened before and how a college handled it, she says.

“So it’s really more about accountability of the government than the personal information of the individual employee,” Fisher says.

Such concerns weren’t raised in committee discussion of the bill, Ramsey says. Haynes argues that the rest of the employee file remains open, and any serious problems should be documented elsewhere within.

Other bills were more controversial. Several of these appear to have stalled, such as an effort to require state supreme court justices to deliberate in public when choosing an attorney general (more sunshine), or an effort to keep private the driver’s license information of law enforcement officers (more clouds). An effort to push public hospital boards into the light is dead, Gibson says; it would have eliminated their ability to hold closed meetings about marketing and strategic planning.

A law passed this week making certain information held by a private state athletic association private. This comes at the request of the Tennessee Secondary School Athletic Association, which tried and failed to convince the courts last year that its records weren’t public. The question arose when the association refused to turn over records to The City Paper in Nashville during an investigation of cheating in student athlete recruitment. (The judge ruled the athletic association served as a “functional equivalent” of a government. Although the association appealed, the state supreme court declined to hear the case.)

The initial bill floated in the Legislature would have completely exempted the association from open records laws, but the revised version would close specific records, similar to school district records that aren’t public: student academic, medical, psychological, financial and personal family information. The bill passed out of committee in both houses and awaits a vote.

The City Paper lawsuit is one of a series in the last year or so in which the courts found in favor of those requesting records.

If a local government “willfully” withholds records that it understands are public, taxpayers are on the hook for the challenger’s legal fees. As tracked by the Tennessee Coalition for Open Government website, these payouts included $71,343 last year by the city of Chattanooga and $31,000 by the city of Murfreesboro, both to citizens whose requests were ignored or only partly filled.

So even when residents win, other residents are the ones who pay. In the end, when governments block access to information, everyone loses. We’re all just left stumbling around in the dark.

See AlsoLocal Public Offices Each Handle Records Requests Differently

S. Heather Duncan

S. Heather Duncan has won numerous awards for her feature writing and coverage of the environment, government, education, business and local history during her 15-year reporting career. Originally from Western North Carolina, Heather has worked for Radio Free Europe, the Institute for War and Peace Reporting in London, and several daily newspapers. Heather spent almost a dozen years at The Telegraph in Macon, Ga., where she spent most of her time covering the environment or writing project-investigations that provoked changes such as new laws related to day care and the protection of environmentally-sensitive lands. You can reach Heather at heather@knoxmercury.com

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