15 decisions on public records by the Tennessee Legislature in 2016

This year, Tennessee lawmakers punted on public records bills that could have created new access rights to see police body camera video and files of finished investigations into officer-involved shootings.

But they did pass several new laws — some that exempted more government information from public view, and others that hold promise for improving government transparency.

Following is a roundup of action by the Tennessee Legislature related to public records and access.

1- Police body cameras: After a late-in-session effort to pass a body camera bill and disagreement among stakeholders, the House State Government Committee instructed the Advisory Committee on Open Government to study the issue and provide them with recommendations by January 2017. The move is expected to create a deeper dive into transparency, privacy and use of the cameras. And frankly was best outcome for open government advocates considering the bill’s direction of indefinitely delaying access.

See: Bill would black out police body cam videos in Tennessee and House Committee meeting on body cam video

2 – TBI investigations into officer-involved shootings: The Legislature also decided not to loosen the confidentiality of TBI investigative files when the TBI investigates a police-involved shooting. Under current law, all TBI records are confidential during an investigation, and remain confidential even after the investigation is over. Companion bills sought to create a pathway for the public to see those records when the investigation was finished. But eventual disagreement between the amended House and Senate versions could not be worked out before the General Assembly finished for the year.

State Sen. Sara Kyle, D-Memphis

State Sen. Sara Kyle, D-Memphis

3 – New public records created: A few bills that won approval require creation of new public records that could be relevant in ongoing, high profile issues. One by state Sen. Sara Kyle, D-Memphis, and state Rep. Harold Love, D-Nashville, requires the Tennessee Bureau of Investigation to provide an annual report on March 31 to the Health Commissioner and General Assembly on law enforcement-related deaths that occurred in the prior calendar year.

Another requires a detailed annual report by the Department of Safety on civil asset forfeiture. The report must include the total number of seizure cases opened by the department; the number of seizure cases where an arrest was made; the total number of cases resulting in forfeiture; the types of property seized under this part and the totals of each type; the amount of currency seized; and the amount of currency forfeited.

Advocates including The Beacon Center and ACLU had championed further changes in the civil asset forfeiture laws, but have said the new records will bring additional sunlight and accountability.

4 – New requirement for public records policies for all government entities (HB2082 / SB 2033) A new law sponsored by a pair of Knoxville lawmakers aims to make accessing public records a less confusing process. The bill requires that all government entities establish by July 1, 2017, a written public records policy properly adopted by its appropriate governing authority. It specifies that the policy cannot impose requirements on those requesting records that are more burdensome than state law (a measure advocated by the Tennessee Coalition for Open Government).

State Rep. Bill Dunn, R-Knoxville

State Rep. Bill Dunn, R-Knoxville

Also, as a piece of good news for those who go through a maze before figuring out who to send a request to, the policy must include the name or title, and the contact information of the person designated by the government entity as the public records request coordinator. The policy also must outline the process for making requests.

The new law also creates a way to better engage the Advisory Committee on Open Government in developing best practices and model policies. The Advisory Committee on Open Government is 14-member committee appointed by the Comptroller and made up of citizen, media and government representatives.

The law instructs the Office of Open Records Counsel to create a model public records policy that can be used by all government entities, and allows the Advisory Committee to meet and provide written comment on the draft before it is established.

See: Model public records policy to be developed under the bill.

Finally, the new law also expands the definition of “personally identifying information” that is exempt from the Tennessee Public Records Act. The new definition now includes “unique biometric data, such as fingerprints, voice prints, retina or iris images, or other unique physical representations; or unique electronic identification numbers, addresses, routing codes or other personal identifying data which enables an individual to obtain merchandise or services or to otherwise financially encumber the legitimate possessor of the identifying data.”

The legislation was developed and sponsored by state Rep. Bill Dunn, R-Knoxville, and state Sen. Richard Briggs, R-Knoxville.

5 – Confidentiality of identity of government vendors (HB1543 / SB 246) — Despite questions in committee and on the Senate floor about the scope and need of the bill, lawmakers gave the go-ahead to make confidential the names of vendors who protect government property.

The bill expands an existing exemption in T.C.A. 10-7-504 (i) which seeks to protect information that would allow someone to obtain unauthorized access to government “electronic information processing systems, telecommunications systems or any other communications systems.”

Already, the exemption covered a broad range of information, such as passwords, information that would expose structural or operational vulnerability, or any “information that could be used to disrupt, interfere with, or gain unauthorized access to electronic information or government property.” But the law had specifically stated that the identity of the vendors providing the goods and services “to protect government property or electronic information” would be available to the public, as well as the cost of the contracts. The Haslam administration had asked to allow vendor names to be confidential.

In one subcommittee meeting, state Rep. Cameron Sexton, R-Crossville who carried the bill for the administration said that knowing the name of a vendor would make it easier for someone to hack into the state system. No examples were produced, however, during any discussion in the House or Senate when such a breach or potential breach based on the vendor’s name had occurred in Tennessee or elsewhere.

See debate on the bill in subcommittee at: Bill would make names of cybersecurity vendors secret.

Questions were also raised on the Senate floor by state Rep. Jeff Yarbro, D-Nashville, and state Representative Lee Harris, D-Memphis. They took issue with the broadness of the language in the exemption. “It makes vast amounts of government information confidential,” Harris said, adding he could not support the bill.

State Sen. Bill Ketron, R-Murfreesboro, who carried the bill in the Senate, said the public will still get to know the cost of contract, just not the identity of the vendor.

6 – Assessment reports used to make recommendations in juvenile delinquency cases (SB2419 / HB 2298) Lawmakers added a new section to T.C.A. 37-1-1 (Juvenile Courts and Proceedings) to make so-called “assessment reports” provided to the court confidential. The bill only applies to Davidson County where the juvenile court uses these assessments reports to help identify the root causes of a juvenile’s delinquency and order more effective intervention and treatment, said the bill’s Senate sponsor Jeff Yarbro, D-Nashville. Confidentiality is needed to ensure people cooperate with the juvenile court assessment team when they are gathering information, Yarbro said.

The assessment report would not be subject to subpoena, or available for use in other court proceedings, such as custody cases, Yarbro said. Releasing the report to anyone not specified by law to access it is a Class B misdemeanor. And the report is required to be destroyed when the child reaches 18.

7 – Development of a task force to study a potential state open data policy (SB2427 / HB 2215) Lawmakers set up a task force to study the feasibility of state government utilizing an open data policy, similar to the policy enacted by the federal government. The policy specifies that data should be released to the public in ways that make the data easy to find, accessible and usable, while ensuring individual privacy and national security.

State Sen. Jeff Yarbro, D-Nashville

State Sen. Jeff Yarbro, D-Nashville

The Tennessee law charges the task force with examining if data can be collected and created in ways that support downstream information processing and dissemination and if the state can build or modernize information systems to maximize interoperability and information accessibility.

The task force will have 11 members, including the commissioner of general services, the comptroller of the treasury and the secretary of state, or their designees; two members appointed by each the speaker of the senate, the speaker of the house of representatives and the governor; and the chief data and informatics officer from the department of finance and administration.

It is to report findings and recommendations back to the General Assembly by Feb. 1, 2017, at which point the task force will cease to exist.

The legislation was sponsored by state Sen. Jeff Yarbro, D-Nashville, and state Rep. Jason Powell, D-Nashville.

See testimony on the bill by Dr. Jeffrey Kriseman, the state’s chief data and informatics officer:  Tennessee to consider open data standards under proposed legislation.

8 – Allows Department of Transportation to use drones to capture images, limits access (HB2376 / SB2470) There are two main parts of state law that deal with use of unmanned aircraft, or drones, to capture images. One is the Freedom from Unwarranted Surveillance Act (T.C.A. 39-13-609), which restricts law enforcement agencies from using drones except under certain circumstances, such as when they have a warrant or are searching for a missing person or escapee.

The other is T.C.A. 39-13-901 through 907, which deals with the lawful and unlawful capture of images using drones, and how those images can and can’t be used or accessed. Lawmakers changed T.C.A. 39-13-902  to expand the lawful uses of drones, including by the Department of Transportation or its contractors for planning, locating, designing, constructing, maintaining or operating a state program or project.

However, similar to previous “lawful uses,” any images of individuals or things on private property that might have been captured incidentally to the Department of Transportation’s “lawful purpose” would not be subject to inspection by the public through the Tennessee Public Records Act. This exemption already existed and is found in T.C.A. 39-13-905. It also says images of people and things on private property cannot be disclosed as evidence in any criminal, civil or administrative proceeding, and is not subject to discovery, subpoena or other means of legal compulsion for its release.

The legislation was sponsored by state Rep. Andy Holt, R-Dresden, and state Sen. John Stevens, R-Huntingdon.

9 – Limits on fees for birth and death certificates – (SB1931/HB1901) T.C.A. 68-3-207(a) was amended to limit the amount that can be charged by the state Department of Health for a second or subsequent copy of a birth certificate or death certificate. The amount cannot exceed the actual cost to the department of producing the copy. The legislation was sponsored by state Sen. Ken Yager, R-Kingston, and State Rep. John Mark Windle, D-Livngston.  (This did not pass.)

10 – City records related to tourism marketing (SB2083 / HB1997) The city of Sevierville requested this new law to allow confidentiality around its tourism marketing efforts, saying they were at a disadvantage because competitors could get their information. After discussions, including with the Tennessee Press Association, proposed language was significantly narrowed to make confidential only records held by the city “that address a specific amount of money expended in a given market for digital or traditional media or that address the specific detail of targeted audiences identified for marketing purposes.” The exemption, which applies to cities whose primary industry is tourism, will be a new section in T.C.A. 6-54-2.

11 – Publication of names of hotel operators who have delinquent taxes (SB1450 / HB1465) A new law that arose out of a large accumulation of delinquent hotel taxes in Knox County gives government entities a new tool to try to encourage payment of taxes. It allows any city, town or county to publish the names of such delinquent taxpayers as a preliminary step in pursuing other remedies.

Sponsored by state Sen. Randy McNally, R-Oak Ridge, and state Rep. Jason Zachary, R-Knoxville, the bill adds a new section to law, T.C.A. 67-4-1412, that overrides an existing exemption (T.C.A. 67-1-1702) related to privacy of tax records. In this carve-out, the names of operators with due or delinquent taxes can be published if the amount exceeds $10,000 and has been due for 120 or more days, or if the amount exceeds $50,000.

The amount cannot be published if all or any portion of it is at issue in a lawsuit filed by the operator challenging the collection or assessment of the tax.

The law provides for publication for two consecutive weeks in January “in a newspaper of general circulation,” or one or more newspapers published or widely distributed in the city, town or county. Or if no newspaper is published in the city, town or county, the notice can be posted on the courthouse doors.

12 – Proposals for government contracts (SB1742 / HB2347) A new exemption was added to T.C.A. 10-7-504 to make confidential proposals and statements of qualifications received by local government entities in response to requests for proposals or qualifications for personal, profession or consultant services. The exemption says that those proposals would not be subject to public inspection until the intent to award the contract to a particular respondent is announced.

The bill was sponsored by state Sen Ken Yager, R-Kingston, and state Rep. Kent Calfee, R-Kingston. This exemption is similar to one that already exists for state government agencies in  T.C.A. 10-7-504 (a)(7).

13 – Copy fees for appellate court documents (HB1791 / SB2022) A new law changes how fees are set for the offices of the clerks of the supreme and intermediate appellate courts by rewriting T.C.A. 8-21-501.

Instead of fees being set by the Legislature as they are now, the new law gives authority to the Tennessee Supreme Court to set the fees. The types of fees include general filing fees as well as fees for various services such as certifying copies and making copies of court documents.  The copy fee allowed in statute now is $1 per page.

The bill also specifies that when electronic filing is implemented in the appellate courts, the clerk, with approval of the supreme court, can charge “transaction, subscription, or other types of fees to users of the clerk’s electronic filing system or the clerk’s electronic document retrieval system.”

In explaining the need to allow the supreme court to set the fees, House sponsor John Lundberg, R-Bristol, said it will allow for the courts to cover their costs for transitioning to electronic filing. Some questions arose during the bill’s debate, including why authority for fees was being transferred to the court instead of staying with the legislature. Also, questions arose about the lack of a cap on the fees. The new law says “The supreme court shall have the authority to set all fees, charges, and surcharges of the clerk at levels sufficient to offset the costs of administering the clerk’s office.”

Some court documents are already online and free to access, such as appellate opinions and many motions, orders and judgements through a searchable Public Case History tool.

14 – Survey records of the Comptroller’s office (SB 1639 / HB1682) Under a new law, survey records, responses, data, identifying information, intra-agency and interagency communications, and other records received to serve as input for any survey created, obtained, or compiled by the comptroller of the treasury are exempt from public inspection under the Tennessee Public Records Act.

The law, which adds a subdivision to T.C.A. 10-7-504(a) 22, does not apply to any survey conducted by the Office of Open Records Counsel. The bill was carried by state Sen. Jack Johnson, R-Franklin, and state Rep. Curry Todd, R-Collierville.

15 – Public notice for zoning hearings for Davidson County (HB1848 / SB 1809) New legislation eliminated a provision in T.C.A 13-7-105(b) that required Davidson County to give 30 days notice before a public hearing on proposed zoning changes. The previous law allowed all counties but Davidson County to give 15 days. Jon Cooper, Metro Nashville’s law director said city staff discovered the discrepancy last year, and wanted to bring Nashville in line with other cities. He said Nashville’s own zoning rules require at least 21 days advance notice and the city has no plans to change this.

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