Some of the more frequent open meetings problems heard by the state’s Open Records Counsel include governing bodies failing to keep minutes or prepare them promptly, agendas that don’t clearly indicate matters to be discussed, and pre-meetings by members of governing bodies followed by votes in an open meeting with no public discussion.
The Office of Open Records Counsel and the Advisory Committee on Open Government is required by statute to file an annual report with the General Assembly each year.
It traditionally includes the number of inquires received by the office each year, broken down into categories. It also has often included a summary of open meeting inquiries.
In the report this year, Open Records Counsel Ann Butterworth noted the following issues as causing the most frequent questions and problems about open meetings law:
- Members of a governing body meet before a meeting and then vote at the meeting without public discussion revealing reasoning behind the decision making on the agenda items.
- Retreats or study sessions are held with notice of the gathering, but no minutes are kept of the discussion and decision making.
- Minutes in draft form are not made available for public inspection, and only approved and signed minutes are provided. Also, minutes are not prepared promptly after a meeting is held.
- The committees of boards or commissions do not comply with the Tennessee Open Meetings Act (no public notice given and no minutes prepared).
- Meetings are held in locations where it is difficult for the public to attend or to hear what is being said.
- Meeting agendas do not clearly indicate matters to be deliberated and decided.
The law requires minutes of meetings to be recorded promptly, and under the Tennessee Public Records Act, draft meeting minutes that have not yet been approved by the governing body in a subsequent meeting are still a public record that citizens have a right to see.
The report also notes that the Open Meetings Act “requires that the public be given adequate notice sufficiently in advance of the actual meeting in order to provide an opportunity to become aware and to attend. In very limited circumstances, a governing body may meet in a non-open session.”
In the past, the annual report has shown an increasing number of inquiries about public records and open meetings law to the office, rising from 600 in 2009 to 1,869 in 2015. (The reporting year runs from March to February.) Inquiries have grown so dramatically that the office has had difficulty keeping up. Butterworth noted in the report’s introduction that “the Office is struggling to fulfill its statutory responsibilities within the appropriated resources” in answering inquiries. She referenced a performance audit from last year that showed it was significantly behind on answering inquiries.
To address the backlog, the report notes that office has worked to streamline its database reporting to track inquiries and responses. It also has requested additional funding for two positions.
However, it’s not clear if the office received more inquiries last year. Because of a tracking change that now groups issues together by constituent contact instead of counting issues individually, the 2016 number reported is not an apples-to-apples comparison with 2015. The report said that the number of inquiries received in the year ending February 2016 was 1,215, more than 600 fewer than reported last year using the different tracking system
The report also referenced a significant undertaking by the office last year to hold three public hearings, conduct surveys and prepare a report on a proposal to change the law to charge new fees to inspect public records. The report noted that most comments it received opposed new fees, and said that the “public’s participation and comments in the surveys and hearings indicate an overwhelming concern, by citizens and government representatives, to maintain, and a desire to increase, transparency of government.”
It also made the following recommendations as potential changes if the costs of preparing records for inspection remain with the governing entity:
The OORC offers the following as potential changes that could be considered.
- Provide incentives for best practices.
- Adjust/clarify documentation and retention requirements.
- Prescribe permitted use of e-mail “in connection with the transaction of official business”.
- Make definitions uniform.
- Define responsibility within record custodian hierarchy.
- Clarify “in connection with the transaction of official business by any governmental agency”.
- Provide guidance for custodians when responding to requests that are large and complex or that take more than seven (7) business days for response.
- Clarify distinction between discovery requests and TPRA requests.
New legislative initiatives:
- Affirm the public need for creation or receipt of additional records/information in light of privacy and security concerns.
- Consider cost of records storage, maintenance, and production for inspection.
- Anticipate rapid and continuous changes in technology impacting how the records are received, created, and accessed.
- Address confidentiality of any information to be created or received, and add a crossreference to Tenn. Code Ann. Section 10-7-504.