Earlier this week, I was grateful for the opportunity to make a presentation to a new legislative Joint Open Records Ad Hoc Committee that is examining the growing number of exemptions to the Tennessee Public Records Act.
The committee is grappling with a potential review of exemptions, which the Office of Open Records Counsel says have grown to 563 after 25 news ones were added in the most recent session.
Tennessee Coalition for Open Government made seven recommendations to the committee, but one of the more important ones is that our state needs a new way of adopting exemptions.
Some exemptions don’t get enough scrutiny
It’s just too easy to pass an exemption without the public realizing what public information is becoming sealed. Sometimes, lawmakers only hear from the entity who wants the exemption. This is usually a government entity or agency, a business regulated by the state, or a group that lobbies for business or government.
Some proposed exemptions are barely explained to lawmakers in committee meetings, where most of the deep scrutiny of bills is supposed to take place. The end result is that lawmakers and others involved in the process may or may not realize exactly what public information is being closed and the impact of that. They may never hear the reasons for transparency and government accountability.
To be sure, many lawmakers are interested in and familiar with protecting open government, and not all exemptions are passed with little scrutiny. But enough are, and enough have been, that we should take a hard look at the process.
Some of you reading this column may not be familiar with the legislative process in Tennessee.
When a bill is filed, it has a caption that describes the particular part of Tennessee Code Annotated that the bill’s sponsor wants to change.
A bill can open a particular title, and chapter and part within the title. A bill can open multiple titles, chapters and parts. But the important thing is that the bill cannot be used to change any part of Tennessee Code that is not included in the bill’s caption.
The bill also carries a brief description that says something like “to amend Tennessee Code Annotative relative to the operation of motorcycles and motor-driven cycles on shoulders of highways,” to give you an example from last year.
Some bills obscure intention of closing records
Sometimes lawmakers file a bill that is commonly referred to as a “caption bill.” That is a bill that opens a part of the code — possibly a very large part of the code — and the description is vague or has little to do with the specific change the lawmaker is seeking. The placeholder language in the bill also has nothing to do with the intent of the lawmaker. Only after the lawmaker introduces the real bill in a House or Senate committee and after it is passed by a House or Senate committee does the real language and the real intent in the form of an amendment become publicly accessible.
Sometimes lawmakers file caption bills that open entire titles.
Here’s an example from one in 2017 that was used to create an exemption to the Public Records Act for information about University of Tennessee’s financial investments:
“AN ACT to amend Tennessee Code Annotated, Title 49, relative to higher education.”
So here is the problem. To pass an exemption to the Tennessee Public Records Act, you do not have to open Title 10, Chapter 7, Part 5, which is where the public records law resides. If you did, every time a lawmaker sought to make an exemption or change to the Public Records Act, it would be apparent even if the bill was filed with placeholder language.
A majority of the 563 statutory exemptions are placed somewhere else in the law, often in titles related to the government entity that is the custodian of the records.
So unless a bill is filed with language to make it clear that the lawmaker is considering making public records confidential — or with enough specificity in its description, such as with the words “records,” “privacy,” “confidential,” to give the public a clue of the intent — there is no way of knowing, short of the lawmaker or someone who knows about the bill’s real intention telling you.
In the best law-making scenario, that communication does occur because lawmakers (and lobbyists) don’t want an unvetted proposal to become law.
But it doesn’t always occur. And the end result is that it is quite possible — and in fact it happens pretty much every year — that someone who wants an exemption to the Public Records Act can get their bill out of committee and well on its way without any knowledge by those who might have an interest or stake in access to public records or in open government.
Lawmakers should hear from more than 1 entity
So why change the process?
It’s important that lawmakers at the committee or subcommittee level have a chance to hear from more than the person or entity who wants the exemption.
One of the biggest problems with some of our existing exemptions is that they are too broad and or contain vague or unclear language that leads to disputes.
Exemptions should be specific and drawn as narrowly as possible to shield the desired protected information, but not so broadly that the exemption could be easily abused to shield what should be public information.
In some cases, if the public knew what was being closed, many would be against it.
Having the discussion and debate on the front end will not solve all the problems and disagreements. But it gives a chance for lawmakers to anticipate the consequences of closing access to government information, and to better balance the need for transparency with any need for closing information.
In an untended garden, the weeds choke out the ability of your intended crop to produce a fruitful harvest. With better cultivation, we can improve and preserve the Tennessee Public Records Act — and ultimately, a government that remains open and accountable to its citizens.