2020 Legislative Report: A session shadowed by COVID-19

The 111th General Assembly had a session like no other in 2020, punctured by a pandemic that caused leadership to abruptly close their meetings to the public on March 16. Hundreds of people who usually flock to the Cordell Hull building and the Capitol to try to influence their lawmakers and make their voice heard were reduced to telephone, email and video.

Lawmakers continued for four days this way, then recessed March 19.

When they reconvened on June 1, the House had opened its doors to the public again, albeit with reduced seating, required temperature checks and strong suggestions for mask-wearing. The Senate did not; instead, promising action on only a limited number of bills while the House took up full calendars.

Because of COVID-19, the Open Meetings Act got more attention in this legislative session than any in recent memory.

Lawmakers tried unsuccessfully to pass a bill before they recessed in March that would have allowed all governing bodies to meet electronically during an emergency.

Disagreement between the House and the Senate on the scope of a new exception, and what must be done for public access, could not be worked out in time. Each house refused to conform with the other until finally, near midnight, giving up with no conference committee in sight before they shut down and went home.

The next day on March 20 Gov. Bill Lee stepped in and issued Executive Order No. 16 temporarily allowing for electronic meetings with certain conditions. This set off a new normal for three months of governing bodies using Zoom, WebEx and conference calls to conduct meetings, many of which were live streamed or broadcast to the public, with varying success. (See TCOG’s survey documenting electronic meetings in April and May.)

So with all that, did any legislation get passed related to public records, open meetings and transparency? Yes!

Bills that passed:

1 – Who pays redaction costs? New law clears up obscure drafting error

The law states that a governmental entity “shall not … assess a charge to view a public record unless otherwise required by law.” This is the source for the free inspection option for public records as opposed to requesting copies for which you can be charged.

The Knox County Sheriff challenged this during a recent public records lawsuit, arguing that a provision in the law added in 2002 that allowed public utilities to charge requesters for redacting certain consumer information applied more widely than just utility records.

Because this utility exception, T.C.A. § 10-7-503(a)(20), used the word “subdivision” in some of its references, the sheriff’s office argued that the redaction charges could apply to redaction costs for all the confidential information outlined in subdivision (a), which would be (a)(1) through (a)(31), and not just subsection (a)(20), which was about utility records.

The subdivision verbiage here had caused confusion before, but because of the context, it was generally thought to be a drafting error. For example, the chancellor was skeptical of the sheriff’s claim and eventually ruled against it. The Office of Open Records Counsel rejected the view as well, even using the utility provision in its training to explain that the utility records are one of the few instances in which redaction costs could be charged for inspection.

One of the original sponsors of the 2002 utility exception, State Sen. Rusty Crowe, R-Johnson City, carried a bill to correct the language, essentially replacing subdivision with subsection (a)(20) where it appeared to match the original intent and align with the way the provision has been interpreted and understood for years.

The bill was carried on the House side by state Rep. John Holsclaw, R-Elizabethton. HB2463 / SB2247 passed both houses and was signed into law as Public Chapter 624.

2 – Lawmakers support and pass records preservation bill

Last year, the Chattanooga Times Free Press decided to look at how the Hamilton County Attorney’s office was responding to public records requests.

Based on her own experience as a reporter, Sarah Grace Taylor wanted to look at the reasons given for denying access to records, the assessment of costs, and delays. She put in a public records requests for 12 months of requests and responses to those requests — not the underlying public records that might have been produced, but the communication that would reveal how the attorney’s office responded.

The newspaper and the attorney’s office began to go back and forth over charges to see the records. As this continued, the Hamilton County Attorney’s Office went to its county public records commission and got permission to destroy records requests and responses to records requests after 30 days. Unaware, the newspaper continued to negotiate for the records, and months later, as the newspaper thought it was on the verge of getting them, the attorney’s office announced they had been destroyed, per the records commission’s permission.

State Sen. Todd Gardenhire, R-Chattanooga, decided to carry a bill to address the gaps in the law that allowed this move. State Rep. Mike Carter, R-Ooltewah, carried it on the House side. It was one of the few bills to pass the House and Senate in the June session.

The new law prohibits the destruction of public records that are subject to a pending public records request and says that “[p]rior to authorizing the destruction of public records, a governmental entity shall contact the public records request coordinator to ensure the records subject to destruction are not subject to any pending public records request…”

Violation could result in a civil penalty of $500.

In addition, the new law requires a minimum 12-month retention of written or electronic correspondence regarding a public record request. This retention requirement would include the requests for public records and responses by the entity to the requestor, but would not cover the actual records that had been requested and provided to the requestor.

HB2578 and SB 2313 passed 93-0 in the House and 30-0 in the Senate. Senators Dolores Gresham, R-Somerville, and Mark Pody, R-Lebanon, signed onto the Senate bill as co-sponsors. Reps. Mike Sparks, R-Smyrna, William Lamberth, R-Portland, and G.A. Hardaway, D-Memphis signed on as co-sponsors in the House.

3 – Bill requested by Office of Open Records Counsel allows more options for custodians

A bill requested by the Office of Open Records Counsel made multiple small changes to the core of the Tennessee Public Records Act. It passed easily into law.

Part of the bill gave more leeway to custodians when they respond to a public records requestor with an estimate on how long it will take to fulfill a public records request. Instead of using a specific form to do this, the custodian can now simply respond in writing.

Under current law, if a custodian doesn’t provide the requested records or deny the request within seven business days, they must “furnish the requestor a completed records request response form developed by the office of open records counsel stating the time reasonably necessary to produce the record.”

The Office of Open Records Counsel said custodians wanted the option to not use the form. So the bill changed this part of the law to say instead, “Furnish the requestor in writing, or by completing a records request response form developed by the office of open records counsel, the time reasonably necessary to produce the record or information.”

The legislation (SB1626 and HB1632) also moved two public records exemptions that were in T.C.A. § 10-7-503 to T.C.A § 10-7-504 as new subsections.

4 – Open Meetings bill gives state university boards leeway to hold electronic meetings

Before COVID-19 entered our consciousness, the legislature was already working on another bill to allow the six state university boards to meet electronically whenever they wanted.

This legislation passed and applies to the governing boards of Austin Peay State University, East Tennessee State University, University of Memphis, Middle Tennessee State University, Tennessee State University and Tennessee Technological University.

The changes affect provisions in the Open Meetings Act in T.C.A. § 8-44-108, and in the meeting provisions for higher education boards in T.C.A. § 49-7-151.

The bill (SB2719 and HB2496) was carried by Senate Education Chairwoman Delores Gresham, R-Somerville, and State Rep. David Hawk, R-Greeneville.

It might be helpful to have a little history here.

In 1990, the General Assembly passed the first electronic meetings exception, allowing members of state boards, agencies and commissions to participate in a meeting electronically if the governing body determined that it was needed to take timely action on an issue and physical presence was not possible in time to act on the issue at hand.

The idea was that state boards are often comprised of members from all over the state who might be unable to physically assemble in enough time to take action on an item needing emergency action.

The law was updated in 1999 to say that a quorum of members had to be present at a physical location, but a state governing body could get an exception to the physical quorum by making a determination of necessity and filing it with the Secretary of State.

“Necessity” was defined as “matters to be considered by the governing body at that meeting require timely action by the body, that physical presence by a quorum of the members is not practical within the period of time requiring action, and that participation by a quorum of the members by electronic or other means of communication is necessary;…”

In other words, the law now allowed the possibility of allowing all members on a state board or commission to participate remotely, such as by phone or video conference, for certain limited business and under certain conditions which they had to document.

Then in 2012, through two different bills, provisions were added to get rid of the necessity requirement altogether for three state boards: the Tennessee Board of Regents, the Board of Trustees for University of Tennessee and the Tennessee Higher Education Commission.

The changes gave these three higher education boards the most leeway of any type of state board. Now, none of their members ever had to be physically present for their meetings.

In 2016, the General Assembly gave six state universities their own local governing board, removing them from the authority of the Tennessee Board of Regents. However, the allowance to conduct meetings electronically without limitation had not carried over to these new “local” boards. They asked for legislation to change that.

5 – When a juvenile commits an act of terrorism

Court files and law enforcement records in juvenile court cases are generally closed to the public per Tennessee statute.

But petitions and court orders in such cases are open to public inspection when a juvenile is 14 years old or older and the act, if committed by an adult, would constitute a list of certain violent crimes (first degree murder, second degree murder, rape, aggravated rape, rape of a child, aggravated robbery, especially aggravated robbery, kidnapping, aggravated kidnapping or especially aggravated kidnapping.)

Legislation successfully carried by state Rep. Dan Howell, R-Georgetown, and state Sen. Mike Bell, R-Riceville, (HB1846 and SB2747) passed and expands in what situations those court orders and petitions must be open to include a juvenile whose actions constitute “an act of terrorism, as defined by § 39-13-803, or an attempt to commit an act of terrorism.” This expansion doesn’t require that the juvenile be 14 or older.

The bill also prohibits expunction of a juvenile court record if the child was accused of terrorism or an attempt to commit terrorism.

6 – 2017 law prohibiting release of child victim names created problem for city memorial

State Rep. Jason Powell, D-Nashville, and state Sen. Jeff Yarbro, D-Nashville, brought a bill that would allow the city-established Children’s Memory Garden at Centennial Park in Nashville to continue to honor children who lost their lives to homicide and violence by publishing their names on walkway stones and accompanying literature.

The park opened in 1996 with the purpose of providing peace and comfort to parents, family members, and friends of children lost to homicide or other violence, Powell told a committee.

However, in 2017, the General Assembly passed a law that prohibits a government entity from revealing the names and photos of crime victims who are minors. This can be found in T.C.A. § 10-7-504(t). The only way that a child victim’s name can be released by a government entity is for the parent or legal guardian to successfully petition a court to waive confidentiality.

That presented the Children’s Memory Garden with a problem. It was not mentioned whether the city would have to dig up memorial stones that already revealed child victim names, but going forward, it appeared that the city would need parents to get court orders from a judge if the child’s name was to be included in the garden.

The bill by Powell and Yarbro (HB2383 / SB2268) created an exception specific to such government memorials: Subsection (t) shall not be construed to “limit or prevent a political subdivision of this state from publicly releasing the name or photograph of the minor victim of a criminal offense for the purpose of memorializing minor victims of crime in a memorial garden established by the political subdivision, including any literature related to the memorial garden, if the custodial parent or legal guardian of the minor victim has consented to the release.”

The bill was one of the few considered in the June session and passed with no opposition.

Bill that didn’t pass:

1 – “Agendas-on-websites” bill falls victim to shortened session

House Majority Leader William Lamberth, R-Portland, began working on a bill last year that would require government entities to put more public records online if they have a website. The legislation emerged this session in HB2132 and SB2756, carried in the Senate by Sen. Mike Bell, R-Riceville.

The bill got as far as passing the House Public Service and Employees Subcommittee, and appeared headed for a positive vote at the State Government committee before it was derailed by the COVID-19 shutdown. It was not one of the bills resurrected for the shortened June session.

The bill, with the amendment approved in subcommittee, would have required that governing bodies put agendas of upcoming meetings on their websites at least three days prior to the meeting, if they had a website. The agendas would have been required to “reasonably describe matters scheduled to be discussed or under contemplation for a vote; provided, however, that this subsection (h) does not limit or restrict a governing body’s ability to consider or vote on items of new business not listed on the agenda…”

If a government entity did not operate or control their website — if they contracted out that service, for example — they were not required to post the agendas there.

2 – Proposal to allow government entities to pursue “harassment” claim against requestors fails

One of the repeated complaints from government officials are people who they think abuse the public records process by asking to inspect — for free — large volumes of public records with seemingly little purpose. A typical complaint describes a person who comes in and asks to see all the traffic violation tickets written each day, or body camera video.

State Sen. Ferrell Haile, R-Gallatin, sought to address the issue through a judicial process after his mayor in Gallatin described a man who was overwhelming them with requests.

The so-called “harassment bill” (SB590) would have allowed a government entity to petition a court for an injunction against someone who used the public records law to harass government employees.

The Senate Judiciary Committee spent a full hour discussing the merits of the bill — and their doubts — before voting 5-4 against it.

The bill presented by Haile had more protective features than it did when originally filed in 2019. The original bill had gotten so much negative outcry that the House sponsor William Lamberth, R-Portland, had backed off. However, Haile continued to plow forward, and worked with TCOG and government associations over several months in 2019 before producing the new version in 2020 that was presented to the Judiciary Committee on Feb. 18.

Haile characterized the bill as an “anti-bullying bill” and told the committee that “this is not intended whatsoever to interfere with honest inquiries concerning our government.”

Under the bill, a government entity could get an injunction to prevent a person from making requests for up to one year if a judge found the person to meet a harassment definition:

  • The request had to be “made in a manner that would cause a reasonable person, including a records custodian or any staff of the public entity in control of the public records, to be seriously abused, intimidated, threatened, or harassed;”
  • The conduct had to “in fact” seriously abuse, intimidate, threaten or harass the person;
  • The requests had to be determined not to be made “for any legitimate purpose”; and
  • The requests had to be “made maliciously.”

Legitimate purpose was defined as:

(1) Publication or broadcast by a person engaged in gathering information for publication or broadcast connected with or employed by the news media or press, or who is independently engaged in gathering information for publication or broadcast;
(2) Using the information for a commercial purpose or for academic research; and
(3) Investigating or evaluating government operations for a public purpose.

Committee Chairman Mike Bell, R-Riceville, said he was concerned it could be used against political gadflies and voted against it. Sen. Sara Kyle, D-Memphis, also voted against the bill. She said she thought the harassment definition was “too subjective” and “we’re going down a slippery slope.”

TCOG testified before the committee. In addition to the safe harbor for media and other public purposes, the protective features required that a government entity had to inform the person in writing the specific conduct that it believed constituted harassment. Only if that conduct continued could a harassment claim succeed.

The bill also had a tracking feature. It required the government entity to file a copy of its petition with the Office of Open Records Counsel, as well as any orders from the judge. The Open Records Counsel was charged with including information about the actions in its annual report to the General Assembly, and to the Advisory Committee on Open Government.

3 – Marsy’s Law proponents fail to move forward victim’s privacy right

The California-based Marsy’s Law organization has been systematically working to change state constitutions to give constitutional rights to crime victims, including a right to privacy. This was the year they brought that effort to Tennessee.

State Sen. John Stevens, R-Huntingdon, and state Rep. Patsy Hazelwood, R-Signal Mountain, carried the measures, SJR 885 and HJR 822.

Tennessee already has a Victim’s Bill of Rights in its constitution, passed by voters in 1998. It includes several substantive rights, including the right to be informed of all proceedings and the release of accused and convicted persons, and the right to be “free from harassment, intimidation, and abuse throughout the criminal justice system.”

The Marsy’s Law proposal would have strengthened these rights and added new ones, including the right to privacy.

In other states that have adopted the Marsy’s Law proposals, a crime victim’s right to privacy has led to major changes in what crime information is released to the public. In Florida, for example, some law enforcement agencies have stopped giving out crime information and data — even the location of crimes. Likewise, court clerks have struggled to understand their duties to redact victim information from court documents, such as on affidavits of complaints and other charging documents. It was unclear how the traditional and constitutionally protected access to courts and court documents would be affected.

Several lawmakers had signed onto the resolutions, including House and Senate leadership.

However, the procedural requirements for constitutional amendments in Tennessee are strict and lengthy. The amendment must pass in the same form on three separate readings on three separate days, then be published at least six months before the next election for members of the General Assembly. It then must be passed by the new General Assembly before it can be put on the ballot. And that ballot must include a governor’s election.

The resolution had only made it through a House subcommittee by the time of the March shutdown. By June, the window before the Nov. 3 election had been whittled to five months. In addition, some lawmakers were concerned about due process rights of the accused. Getting an amendment would mean more lost time on the clock.

The House Judiciary Committee returned the bill to the clerk’s desk without comment. Sen. Stevens pulled the bill, blaming COVID-19 for the timing problems.

This effectively shuts down the possibility of a new victim’s rights amendment on the ballot in 2022 (the next election for governor), making 2026 the soonest possibility.

4 – Open Meetings bill that didn’t happen.

As mentioned above, lawmakers embarked on a quick but unsuccessful effort before the March shutdown to pass legislation to give local governing bodies the ability to conduct meetings electronically so they could avoid meeting in person in light of the COVID-19 pandemic.

But it’s worth sharing the differences in the Senate and House versions of the bill.

The Senate version (SB2897 by Sen. Paul Bailey, R-Sparta) tied the ability to conduct meetings electronically to a governor-declared state of emergency; whereas the House version (HB2815 by House Speaker Cameron Sexton, R-Crossville) gave more authority for local governing bodies to declare a state of emergency and suspend requirements under the Open Meetings law. The Senate version had more requirements for notice of meetings, requiring notice to be in a place where the public would reasonably be able to see it. And it also limited the business that could be taken up in electronic meetings to “essential business.” The House version required that all meetings conducted electronically be streamed or broadcast live; the Senate version allowed governing bodies that did not capacity for live streaming or broadcast to record the meetings and make them available to the public later.

Both had end dates of Feb. 15, 2021, which was indicative of the uncertainty about the virus at the time and the unchartered waters of widespread electronic meetings.

In the end, neither version passed.

5 – Effort to make public autopsies confidential failed

State Rep. Micah Van Huss, R-Jonesborough, unsuccessfully tried to close autopsy reports with a bill that stated “the reports of the county medical examiners, toxicological reports and autopsy reports are not public records.”

The bill (HB2495), with an amendment, was approved by the House Health Committee, but the Senate Health Committee did not take it up when it reconvened in June. State Sen. Joey Hensley, R-Hohenwald, carried the Senate version (SB2355).

Under the proposed legislation, the reports could only be released pursuant to a subpoena or court order, upon request by a decedent’s next of kin, or upon request by an insurance company in relation to an insurance claim.

Under current law, county medical examiners may conduct autopsies in cases of suspected homicides, suicides, suspicious and unexpected deaths, sudden unexpected child deaths, deaths believed to represent a threat to public health and safety, and executed prisoners. Taxpayers bear the cost. They are unlike private autopsies, which a family might order to determine cause of death and pay for on their own.

State Rep. John Ray Clemmons, D-Nashville, asked if scientific researchers could still get death data under the bill. Van Huss said a researcher would have to get a court order or next-of-kin permission just like anyone else.

What do you think?