An open records committee that has met over the past five months to consider the growing number of exemptions to Tennessee’s Public Records Act says it will recommend a new, more robust process to vet both existing and future exemptions.
“We’ve learned that Tennessee needs to do a much better job in terms of transparency, and I think we’re going to move toward that,” said state Rep. Jason Zachary, R- Knoxville, the House co-chair of the Joint Open Records Ad Hoc Committee.
The recommendations include a method that could put some of the 563 exemptions now in Tennessee Code into a sunset process, which would mean they would undergo an evaluation and could be scheduled to expire unless action is taken by the legislature to renew them.
The recommendations also include providing more scrutiny of proposed new exemptions by requiring bills closing records to go before a second committee before progressing toward a full vote on the House or Senate floor. Currently, proposed exemptions are heard by any of the House and Senate committees, often related to the subject matter of the exemption. Those committees sometimes only hear from those who want the exemption. And sometimes the proposed exemptions are hidden from the public until after a committee vote is taken to add the amendment creating the exemption.
Two options for examining proposed new exemptions
Under a proposed new process, any legislation that makes government records confidential, or “exempt” from the Public Records Act, would go through a committee that will be charged with vetting the exemption, Zachary said. The committee would only vet the exemption, not any other unrelated elements of the bill.
Which committee would be best suited to review proposed exemptions is still under discussion.
One option is the existing government operations committees of the House and of the Senate. This option “gives two sets of eyes, two different committees the opportunity to be able to vet that exemption,” Zachary said.
The other solution would be a new committee, much like the Pensions and Insurance Committee, that has House and Senate members on it and a staff. That committee would be “able to vet exemptions, positive, neutral or negative, and then send it on to (its subject-matter) committee,” he said.
Current exemptions should be reviewed for possible sunset
For the 563 current exemptions in Tennessee Code, Zachary said his committee is recommending that the existing joint government operations committee establish a process and embark upon a thorough review.
“They meet year-round,” Zachary said. “It’s the perfect committee to do it. And they (can) begin to walk through those exemptions…Chairman (Todd) Gardenhire (the Senate co-chair of the ad hoc open records committee) and I will meet with our speakers about the best way to move forward on that. They both want to do that.”
Zachary noted that reviewing all 563 exemptions was more than the open records committee could do their short amount of time this fall.
“We did not realize what an extensive and exhaustive lift this would be,” he said.
However, Zachary indicated the committee, which received input from community groups, individuals and government entities, would pass along some specific recommendations to the government operations committee about certain exemptions.
The ad hoc committee met four times beginning Aug. 14. It had been established by Lt. Gov. Randy McNally and former House Speaker Beth Harwell after they received a report at the start of the 2018 session from the Office of Open Records Counsel showing that the number of exemptions had grown to 538. The number grew again to 563 by session’s end. In 1988 — 30 years ago — there were 89 exemptions.
Bell says he expects most exemptions will be non-controversial; some will require a drill down
While the number of exemptions has multiplied over the years, state Sen Mike Bell, R-Riceville, one of the open records committee members and the current co-chairman of the Joint Government Operations Committee, said that he did not think that the task of reviewing the entire list would be that “big of a task.”
“Even though we are looking at the 563 exemptions, and that’s a monumental number, 85, 90 percent of those are probably going to be very non-controversial. Of course, we want to comply with HIPAA. That exemption is going to have to be there…”
He said many exemptions might be connected to federal or state law requiring confidentiality.
“I think there will be very few that we’ll have to really drill down to and those are the ones that we will have to put a sunset on and give the Legislature time in the future to come back and examine those, and say has this been working as it was intended to? Or do we need to remove this to keep government as open and transparent as possible?”
Florida’s sunset review, criteria may be a potential guide
The ad hoc committee also indicated that some criteria should be established to guide exemption reviews, suggesting this criteria would be in their proposed legislation about the new process.
“Florida has already gone through a process like this and set up rules on how to deal with these bills,” Bell said. “They base it on five questions that, depending on how that particular exemption is answered by those five questions … determines whether it needs to go in that sunset process. I believe we don’t have to reinvent the wheel.”
Gardenhire plans look at Tennessee Risk Management Trust
State Sen. Todd Gardenhire, the Senate co-chair of the committee, in his closing remarks, gave an example he encountered with the Hamilton County School Board regarding lack of access to records about government spending.
After some Ooltewah High School students were raped during an athletic trip, several lawsuits were settled with the Hamilton County School district, but officials refused to provide any information about the money they paid out on the lawsuits, he said. They also would not reveal how much they paid out in legal expenses to defend the lawsuits, Gardenhire said.
“To me, those are pertinent questions when you decide who’s at fault in this, and who ought to be held accountable for what happened,” Gardenhire said. He said the school board’s attorney said everything had been turned over to their insurance company, who settled the suits, and the school board did not have information on how much was paid out.
“Come to find out, the ones that did it was the Tennessee Risk Management Trust, which by the way, protects the assets of Tennessee’s public entities. Now if it’s a public entity, it ought to be public records that we can see,” Gardenhire said. “I’m pretty upset about the way the school systems continue to hide things from the public when they spend taxpayer’s money when people did things that were inappropriate.”
Gardenhire said he planned to try to get legislation passed “so that these kinds of things kept from the public that ought to be public information” such as how much was settled on lawsuits is not withheld.