Lawmakers tweak public records law, but avoid new fees for now

Sponsors delayed action on legislation that could have made accessing public records more expensive for citizens and news media, but lawmakers in the 109th General Assembly moved ahead on other changes to the state’s public records law.

A new exemption was added to make performance evaluations of more state employees confidential. Another was added to make sure student academic and health information remained private. And yet another reinforced already existing exemptions to protect credit card numbers and email addresses of citizens held by government.

The most far-reaching public records bill was one that never made it to committee for discussion —  a proposal to impose new fees on citizens who asked to inspect public records.

State Sen. Jim Tracy addressing the Senate State and Local Government Committee about the fees-to-inspect bill.

State Sen. Jim Tracy addressing the Senate State and Local Government Committee about the fees-to-inspect bill.

In late March, state Sen. Jim Tracy, R-Shelbyville, and state Rep. Steve McDaniel, R-Parkers Crossroads, put the brakes on the proposal. Instead, they asked the Office of Open Records Counsel and the Advisory Committee on Open Government to study the issue more comprehensively and hold hearings later this year.

“What this will do is undertake a review of the issues surrounding inspection of public records, with the directive that providing the information to the public is essential,” Tracy told the Senate State and Local Government Committee before taking the bill off notice. (View video here: Tracy speaks to Senate committee.)

He and McDaniel had worked with various groups, including Tennessee Coalition for Open Government, to draft an amendment that laid out a direction for studying the issue.

The amendment called for the Advisory Committee on Open Government and the Open Records Counsel to recommend “innovative ways to reduce the cost to government to fulfill voluminous requests for public records and balancing this with protecting the rights of citizen access to public records.” It also would have reduced the time for responses from seven business days to five.

“I would like to ask them to study the amendment,” Tracy told the Senate committee.

The original bill was a top legislative priority for the Tennessee School Boards Association and called for eliminating the right of citizens to look at public records for free and for allowing government to charge per-hour labor charges if a request took more than one hour of a staff person’s time and involved more than 25 pages of documents.

Currently, the law only allows a person to be charged “reasonable” fees if he or she requests copies of a public record, but specifically prohibits charges if someone simply wants to view a public record.

While no comprehensive data exists on the volume or nature of public records requests, or how much is being charged for copies, some news organizations have reported being asked to pay more than $1,000 for copies of government records when reporting a story.  Proponents of the measure had cited a few examples to show how requests can burden government, including when a Williamson County School Board member requested a large number of the superintendent’s emails.

Tracy told the committee that public servants need to know how to handle large requests if they get them, such as for emails.“Now that we have folks who may come in and ask for 4,000 emails of all the folks that are public servants in the area … we want to know how to handle it.”

He also noted the importance of access to records and said he wanted to make sure that excessive fees or other rules are not used to hinder access to public information.

“I think open records (are) very important so people know how their officials and public servants are doing,” Tracy said. 

The amendment worked out by Tracy and McDaniel with various stakeholders asks for a broad study that would examine several factors that could reduce the costs to government and to citizens, including:

  • Involvement of the Open Records Counsel to mediate in instances of voluminous requests;
  • Best practices of records custodians that lead to more efficiency;
  • Adequacy of educational programs for records custodians;
  • Ways to reduce the costs of redacting confidential information from documents;
  • Potential improvements to record-keeping;
  • Assistance to the requester on the front end that could reduce costs; and
  • And pro-active disclosure, such as for records frequently requested.

The amendment also asked for ways to increase enforcement when government officials flout the open records law. Tracy has said he is interested in addressing the “bad actors” on both sides.

The amendment had called for the Advisory Committee on Open Government (ACOG) — comprised of representatives of local government associations, citizen groups and media, and the two chairmen of the House and Senate government committees — to make a final recommendation next year. But the Comptroller’s Office intervened and asked that Office of Open Records Counsel be allowed to study and make the final recommendation instead.

The amendment would have required that notices be posted of ACOG’s meetings and the public be allowed to attend. But earlier this year, Open Records Counsel Ann Butterworth said ACOG was not subject to the Open Meetings Act, and departed from an earlier practice of posting public notices when her office convened the group. The office also no longer records ACOG meetings so the public can hear them later.

It is not yet clear how deeply the issue of responding to large requests will be studied, what even would constitute a “large request” and how to protect against misuse of labor cost estimates to hinder access to certain documents.

A  “Sunshine in Government” study committee of lawmakers spent several months in 2006 and 2007 delving into issues surrounding access to public records. One of their directives was to make clear that fees could not be excessive or used to hinder access to information and “the statute should explain that ‘open to inspection’ means the public cannot be charged to inspect.”

While the study committee made no mention of per-hour labor fees, the Office of Open Records Counsel at the direction of the late state Rep Ulysses S. Jones, a chief in the Memphis Fire Department, recommended allowing local governments to charge by the hour in fulfilling public records requests for copies. Inspection remained free.

Both Tracy and McDaniel asked the Open Records Counsel to report recommendations  no later than Jan. 15.

How other public records and open meetings bills fared:

1 – Records of Tennessee Secondary School Athletic Association (S.B. 1225 / H.B. 315)

The agency that regulates high school athletics sought to get all of its records exempt from the Tennessee Public Records Act. Lawmakers declined to do that, but did make clear that any student academic and health records which are already confidential under state law must remain confidential and not accessible to the public when in TSSAA’s possession.  The issue of TSSAA’s records came to the forefront after an appellate court last year ruled that TSSAA was the “functional equivalent” of government and subject to the Tennessee Public Records Act. The bill also for the first time allowed TSSAA to get those records from public and private schools — records it has been getting for years without authorization. Here is the new language from S.B. 1225 / H.B. 315:

“A voluntary association that establishes and enforces bylaws or rules for interscholastic sports competition for secondary schools in this state shall have access to records or information from public, charter, non-public, other schools, school officials and parents or guardians of school children as is required to fulfill its duties and functions. Records or information relating to academic performance, financial status of a student or the student’s parent or guardian, medical or psychological treatment or testing, and personal family information in the possession of such association shall be confidential.”

2 – Performance evaluations of certain state employees (S.B. 1276 / H.B. 1158)

In recent years, lawmakers have moved to make performance evaluations of state employees exempt from the Tennessee Public Records Act. For example, an existing exemption makes confidential “(a)ll records containing the results of individual teacher evaluations administered pursuant to the policies, guidelines, and criteria adopted by the state board of education under § 49-1-302…”  This year, that confidentiality exemption was extended to employees of the Department of Treasury, Comptroller of the Treasury, Secretary of State’s Office and public institutions of higher education. Here is the new language of S.B. 1276 / H.B. 1158:

A) Job performance evaluations of the following employees shall be

treated as confidential and shall not be open for public inspection:

(i) Employees of the department of treasury;

(ii) Employees of the comptroller of the treasury;

(iii) Employees of the secretary of state’s office; and

(iv) Employees of public institutions of higher education.

(B) For purposes of this subdivision (25), “job performance evaluations” includes, but is not limited to, job performance evaluations completed by supervisors, communications concerning job performance evaluations, self evaluations of job performance prepared by employees, job performance evaluation scores, drafts, notes, memoranda, and all other records relating to job performance evaluations.

3 – Closed meetings of public hospital boards (S.B. 0026 / H.B. 0016)

A controversy over the surprise award of $2.7 million in bonuses to public hospital executives in Erlanger Health System prompted Chattanooga area lawmakers to seek a change in the Open Meetings Law. The Erlanger board of directors discussed the executive bonuses in private and claimed they could do that legally under an existing exemption to the Open Meetings law that allows them to close meetings when they discuss marketing strategies and strategic plans. After a local uproar, the lawmakers requested and received an Attorney General’s opinion, which said the exemption did not cover discussions of executive compensation or executive bonuses.

State Rep. Mike Carter explains the bill to clarify the law limiting closed meetings of public hospital boards.

State Rep. Mike Carter explains the bill to clarify the law limiting closed meetings of public hospital boards.

State Rep. Mike Carter, R-Ooltewah, attempted to pass new language that would codify the Attorney General’s opinion and make clear that executive bonuses and compensation could not be discussed outside of a public meeting. But Jennifer Albrecht, a lobbyist for government hospitals, argued that the amendment was unnecessary because it already was illegal to discuss compensation in private. (View video here: State Rep. Mike Carter explains public hospital bill.)

“We have one hospital that blatantly violated the Open Meetings law, and 19 others that have been good soldiers,” she told a House State Government Subcommittee.

When Carter could not get a vote to consider amended language to clarify the exemption, he pulled the original bill that would have eliminated the exemption altogether.

Subcommittee chair Bill Sanderson, R-Kenton, commented that “I’m of the opinion if you have one bad actor, you don’t punish them all.”

4 – Closed meetings to discuss real estate transactions (H.B. 0397 / S.B. 0169)

The city of Franklin attempted to pass a bill that would allow closed sessions when a governing body wanted to discuss the purchase or sale of property. The bill was filed as  a “caption bill” and originally had language to prohibit members of governing bodies from voting by text. An amendment completely rewrote the bill to deal with closed sessions.

The amended bill put new requirements on all governing bodies who want to go into closed sessions, including having to hold a vote to close the session and informing the public the nature of the business to be discussed in executive session. It also laid out ground rules, such as only allowing persons representing interests of the governing body to be present in an executive session about land purchases or sales, and that the final terms of the contract be made public and voted on in public.

Tennessee, unlike many other states, does not currently require that a vote be taken to go into executive session.

Though the bill passed the House and the Senate State and Local Government Committee, because of efforts to change parts of the amended bill, state Sen. Jack Johnson decided not to ask for a vote on the Senate floor.

5 – A person’s private financial information. (S.B. 1337 / H.B. 0619)

This bill, which passed easily, made confidential any individual’s credit card information, debit card information, bank account and routing information, e-mail address and telephone numbers acquired by a county trustee.

6 – Adds a consumer’s water usage data to exemption for utilities. (S.B. 762 / H.B. 747)

Lawmakers expanded a current exemption on “consumer specific energy usage data” to include water usage data. The exemption is in Section 10-7-504(a)(20)(A)(iii).

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