Putting more teeth in the open meetings law

This year may be remembered in open government circles as the year the legislature passed an attorney fee provision for citizens who win open meetings lawsuits. The idea is that governing bodies would improve compliance with the open meetings law if noncompliance could have a financial consequence.

Like in the public records law, a judge must find that the governing body acted willfully when violating the law. The judge can consider whether the governing body followed any advice the Office of Open Records Counsel gave the governing body in determining willfulness.

We also saw the expansion of the agenda requirement, which will now be applied to state government councils and commissions. The best part is that it requires agendas to be specific.

These pro-open government achievements should not be overshadowed by the list of new exemptions that will make more government records confidential. The biggest fight in 2024 was over closing autopsy reports of minors whose deaths are listed as homicides. TCOG and the press and broadcasters associations pushed back on this bill, noting that it hides information about the crime and the killer in the very instances when transparency should be at its highest. In the end, a compromise was reached that allows inspections of these reports, but not copies.

A whopper of a new exemption was the “Super Bowl” bill that gave a broad exemption to the tourism department. This bill was particularly egregious in that the commissioner can decide on an ad hoc basis what to keep confidential — and keep it confidential for 10 years. Our outcry over this bill helped get it amended to be less bad, but the new law still will likely result in a tourism department operating outside the light of public oversight in many instances.

bills that passed

1 – Attorney fee provision in Open Meetings Act

(Public Chapter 1030, SB1963 / HB 2176 by Sen. Mark Pody, R-Lebanon, and Rep. Susan Lynn, R-Mt. Juliet)

The attorney fees bill emerged from after a Wilson County School Board committee refused to open its meetings where it considered complaints about books to remove from the school library. The committee flouted the advice of the Office of Open Records Counsel, which explained that any committee formed by the school board to make recommendations to the board was subject to the open meetings law.

Noting that the public records law has an attorney fee provision, but the open meetings law doesn’t, state Rep. Susan Lynn of Mt. Juliet said her bill would create stronger consequences for not following the law. The new fee provision matches the one in the public records law. Both give the court discretion. But in most public records lawsuits in which a court makes a willful finding, attorney fees have been awarded.

2 -Definition of “meeting”

(Public Chapter 1030, SB1963 / HB 2176 by Sen. Mark Pody, R-Lebanon, and Rep. Susan Lynn, R-Mt. Juliet)

The bill by Lynn and Sen. Mark Pody of Lebanon had a second part, also related to the Wilson County School Board Book Review Committee. The parent who complained did end up suing the school board in 2023 — and lost in federal court. The case had been moved from state court to federal court because it contained a First Amendment claim, which if successful would have allowed attorney fee shifting.

However, the federal judge, Eli Richardson, concluded that even though the book review committee was a governing body as defined under the open meetings law, it did not have to hold open meetings based on the statutory definition of meeting: “‘Meeting’ means the convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter.”

Richardson reasoned that because the school board did not specify when it created the committee that a quorum was required for it to meet, the committee’s meetings did not have to be open.

Noting that the federal judge’s ruling would create a new and easy way to create committees to evade the open meetings law, Lynn pushed to remove the quorum language so that all committee meetings would be open. The new statute streamlines the meeting definition by simply removing the quorum phrase. The sentence now says “‘Meeting’ means the convening of a governing body of a public body to make a decision or to deliberate toward a decision on any matter.”

3 – Better agendas for state boards, commissions

(Public Chapter 710, SB2741 / HB 2934 by Sen. Todd Gardenhire, R-Chattanooga, and Rep. Rush Bricken, R-Tullahoma)

The first agenda law passed in 2023 and required local legislative bodies to make available to the public at no charge an agenda for its meetings at least 48 hours before the meeting. It also required the agenda to “reasonably describe the matters to be deliberated or acted upon during the public meeting.” An addition to the statute this year expands the agenda requirement to all state governing bodies, covering dozens of state boards, state commissions and state councils.

Getting specificity in agendas for governing body meetings has been a top goal for Tennessee Coalition for Open Government. This bill also clarified that the agenda requirement is for regular meetings. Special-called meetings already have a more stringent requirement laid out by Tennessee courts.

4 – Marsy’s Law and concerns about crime records

(HJR0094 by Rep. Patsy Hazlewood, R-Signal Mountain)

The 113th General Assembly has now completed its first step toward a constitutional amendment to strengthen victim’s rights with the Senate passing “Marsy’s Law” on a majority vote this year. The House passed it in 2023. Public records advocates have been concerned about Marsy’s Law as courts in some states where it has been adopted have interpreted it to limit access to routine crime records.

The next step for amending the constitution with Marsy’s Law is passage by a two-thirds vote of both houses in the 114th General Assembly in 2025-26.  Then the proposed amendment goes before voters in the next governor’s election. If both houses pass the amendment in 2025, it could be on the November 2026 ballot where it then must be passed by “a majority of all the citizens of the state voting for governor.”

Tennessee already has victim’s bill of rights in Article 1, Section 35 of its constitution. But it does not specify that the victim has a right of standing to assert those rights in court — the top goal of the organization working nationally to push the change.

The Marsy’s Law proposal initially received opposition from law enforcement and district attorneys in Tennessee concerned about cost and interference with prosecutions, such as with plea bargains.

Tweaks were made and the new House version allows a victim to assert rights “not as a party, but in the manner provided by the General Assembly protecting the victim’s right to standing.”

Currently, the constitution gives the General Assembly “authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section” without specifically granting standing. The new version strikes that and replaces it with: “The General Assembly has the authority to enact substantive and procedural laws to further define, implement, preserve, and protect the rights guaranteed to victims by this section. This section must be interpreted to preserve and protect the rights of all persons to due process.”  An earlier version also specified right to privacy for victims, but that was not in the final version after objections by TCOG.

5 – Autopsy reports of minors whose cause of death was homicide

(Public Chapter 906, HB1695 / SB 2020, Rep. Rebecca Alexander, R-Jonesborough, and Sen. Shane Reeves, R-Murfreesboro)

A contentious bill to close autopsy reports of minors whose cause of death is listed as a homicide ended up with a compromise: Copies cannot be released but a person can still inspect such reports in person.

The bill was introduced in the August 2023 “school safety” special session, which was called after six people including three children were killed in a school shooting in Nashville. Most of the bills were about gun control and lobbied heavily by the “Covenant moms” who had children at the school. The mother of at least one of the deceased children was deeply alarmed that her child’s autopsy report was released to the news media and her letter was read during committee hearings on the bill.

The bill got stuck in the Senate during the special session and was reintroduced in 2024. It passed with the amendment retaining public inspection — a compromise sought by TCOG, the Tennessee Association of Broadcasters and the Tennessee Press Association. Someone inspecting is not allowed to take a photograph, make a photocopy or create an electronic image under the new law.

The new law allows copies to be released only if the minor’s parent or legal guardian is not a suspect in the child’s death and consents to the release, if a court orders the release of the report “upon showing of good cause,” or if another state or federal law requires such release.  The autopsy reports of children killed while in the custody of the Department of Children’s Service would likely have to be approved for release by the state, which would have been the child’s legal guardian at the time of the child’s death.

The new law says that autopsies of minors are not “public documents.” (Minors are age 17 and younger.) The Senate had adopted a version in committee that said the records are public documents (matching current law for government autopsies). However, the Senate ended up going with the House version. Chairman Richard Briggs, R-Knoxville, who is chair of the Senate State and Local Committee, said on the Senate floor on April 18 that the House bill “clarifies that the autopsies can still be inspected by the public, which was the intention of the (Senate) state and local committee amendment.” One Covenant mom testified that they intended to use the bill to stop news organizations from publishing autopsies they had already gotten. So far, no local news organizations have published the reports.

6 – Tourism department records — the “Super Bowl” bill

(Public Chapter 740, HB1692 / SB2093 by Rep. William Lamberth, R-Portland, and Sen. Jack Johnson, R-Franklin)

This bill was an administration bill requested by the Department of Tourist Development. It allows the tourism commissioner, with the agreement of the attorney general, to withhold any of the department’s records that the commissioner determines are of such a sensitive nature that disclosure would “seriously harm the ability of this state to negotiate events, contracts, agreements, or administer grant programs.”  This could include signed contracts and state expenditures. The records could be confidential for two five-year periods. Although the bill didn’t state it, current state retention schedules would have allowed some records to be destroyed before 10 years were up.

The bill easily passed the House, with Tourism Commissioner Mark Ezell testifying that he needed it to compete for events, such as the Super Bowl for Nashville.

TCOG raised alarm about allowing the tourism commissioner to choose what was confidential and testified against the bill. The Beacon Center of Tennessee also objected. As a result, the bill signed into law included a Senate amendment that provided more pathways for the records to become public sooner. The new law says the confidentiality expires under one of four conditions, whichever comes first: after 10 years; after state funds are disbursed; after the conclusion of the event in which the contract or event was negotiated; or upon the expiration of the contract. It also includes a requirement that documents given temporary confidentiality must be retained at least 5 years after the confidentiality period is over. While TCOG still opposed the bill, the amendment was an improvement.

7 – Meetings between county mayors and county commissioners

(Public Chapter 580, (SB1667 /  HB1921 by Sen. Jack Johnson, R-Franklin, and Rep. William Lamberth, R-Portland)

This bill specifies that county mayors are not members of their county legislative body for purposes of the Open Meetings Act. State law requires county mayors to serve as nonvoting ex-officio members of their county commissions. Though the law says they are nonvoting, another part of the law allows them to participate as the chair of the commission meetings and to vote to break ties. About half of the state’s 95 counties have county mayors who choose to chair the meetings and cast tie-breaking votes, according to the Association of County Mayors.

The bill originated in Williamson County, where the county mayor does not serve on the county commission or cast tie-breaking votes, and was supported by the county mayors association. The Williamson County mayor had complained that he could not meet individually with county commissioners about issues that might require eventual commission action without triggering the Sunshine Law requirements.  He and others said this interfered with their duties as the “executive” branch. TCOG testified in committee against the bill, noting that some mayors play a very real role on the county legislative body. Tie-breaking votes are almost by definition on controversial issues and this is when citizens are most interested in the Sunshine Law.

8 – Meetings between members of local legislative bodies and state lawmakers

(Public Chapter 818, SB2813 / HB2373 by Sen. Shane Reeves, R-Murfreesboro, and Rep. Bryan Terry, R-Murfreesboro)

Emerging from an issue in Rutherford County, this bill clarified that one or more members of a local legislative body who meet with one or more members of their state legislative delegation is not a meeting under the open meetings law, so long as the meeting is an exchange of information and not deliberative in nature or the member or members of the state legislative delegation conduct the meeting to discuss only state matters.

9 – Procurement files

(Public Chapter 634, SB2101 / HB 2090 by Sen. Jack Johnson, R-Franklin, and Rep. William Lamberth, R-Portland)

This law changes a definition of what documents must be made available to respondents to a contract solicitation. It replaces “all data” with “procurement file,” which is defined to include evaluated technical proposals, costs proposals and evaluation sheets, the solicitation and all amendments, all correspondence between respondents and the state, and other items.

10 – Tennessee Artificial Intelligence Advisory Council

(Public Chapter 988,  SB2530 / HB 2325 by Sen. Bo Watson, R-Hixson, and Rep. Patsy Hazlewood, R-Signal Mountain)

The bill creates a 24-member Tennessee Artificial Intelligence Advisory Council to be chaired by the state chief information officer and the commissioner for finance and administration. The council’s purpose is to recommend an action plan to guide awareness, education and use of artificial intelligence in state government. It must submit a plan to the governor on how to leverage artificial intelligence to improve efficiency of state and local government and, no later than May 1, 2025, submit a status report. Beginning on Dec. 31, 2025, and for each year thereafter through 2028, it must submit an annual report to the governor and speakers of the House and Senate. The first report must include any legal regulations or policy changes needed, including that related to workforce development, educational systems and research opportunities. The council is required to meet at least four times a year and can establish subcommittees that can also meet.

While the bill doesn’t reference the open meetings or public records law, a governing body created by statute and authorized to make recommendations to the Legislature is subject to the open meetings law. Its records would also be subject to the public records law.

11- Divisive concepts reports

(Public Chapter 815, SB2501 / HB 2784 by Sen. Joey Hensley, R-Hohenwald, and Rep. John Ragan, R-Oak Ridge)

This bill updated the so-called “divisive concepts” law about investigations into potential violations at state colleges and universities. Already, an institution must investigate a complaint and report violations to the Comptroller’s Office as well as any corrective action taken. Now the institution must report “the results of each investigation,” including the general nature of the complaint, whether the allegations were substantiated by the investigation, and any corrective actions the institution is taking to prevent such violations in the future.

The bill also set deadlines for filing the reports to be no later than 10 days after the investigation is finished, and updates to the comptroller on the status of investigations at least every 30 days.

Also, the Comptroller’s Office must notify the standing education committees of the House and Senate of an institution that files more than 10 reports on investigations per academic year. The law already allowed  reports to be redacted to comply with the federal Family Educational Rights and Privacy Act (FERPA).

The divisive concepts law allows a student or employee to make a complaint if they believe they have been penalized, discriminated against or received adverse treatment due to their refusal to support or assent to a divisive concept as defined in the law, a specific ideology or a political viewpoint.

12 – Legal notices required in newspapers and on websites

(Public Chapter 793, SB 2317 / HB 2114 by Sen. Ken Yager, R-Kingston, and Rep. Dennis Powers, R-Jacksboro.)

When state law requires legal notices to be published in a newspaper of general circulation, the notice also must be published on a news and information website that has a URL, if such a website exists, according to this new law. The website must meet these requirements:

  • Has been published continuously for the previous twelve-month period;
  • Has been published using recognized standards of professional journalism;
  • Must have content revised on a regular basis not less than three (3) times per week;
  • Bears a fixed title or name and date lines and complies with and abides by all copyright laws;
  • Does not serve primarily as a platform to promote the interests or opinions of a special interest group, individual, or cause;
  • Is principally devoted to the dissemination of local or general news with at least 50% of all editorial content reported being original, excluding advertisements; and
  • Exists and is registered with the secretary of state.
  • The news and information website must have an office of publication known to be based in the county in which the notice is required to be published and that is available and open to the public where business is transacted during usual business hours, that maintains a telephone number and email listing, and that includes in each updated publication the contact information of the news and information website.

The bill added the new language to a law passed in 2013 that required newspapers that published legal notices and public notices to publish, at no extra charge, the notices on the newspaper’s website and on a statewide website maintained by Tennessee newspapers.

13 – Reporting on firearm deaths

(Public Chapter 767. SB 1657 / HB 1846 by Sen. Heidi Campbell, D-Nashville, and Rep. John Ray Clemmons, R- Nashville)

The new law requires the Department of Health to submit an annual report beginning Aug. 1, 2025, to the governor stating the total number of injuries and deaths caused by firearms in Tennessee per 100,000 people. The report must include the county in which injury or death occurred, demographic information about each individual and the cause of each injury or death as indicated in the death certificate, police report or other official document. The Department of Health is allowed to redact information to maintain confidentiality of individually identifiable health information. This may mean that when a small number of firearm deaths have occurred in a particular county, some demographic information may be unavailable.

14 – Adult protection investigations and prosecutions

(Public Chapter 655, SB0163 / HB0441 by Sen. Paige Walley, R-Savannah, and Rep. Johnny Shaw, R-Nashville)

The law already provided confidentiality for the identity of a person who reports alleged criminal conduct to the state’s adult protective services. But a new law further expanded the confidentiality to court proceedings in a change that deals with when the agency gives its “complete and unredacted” entire investigative file to the district attorney. The law now says that the identity of the person who reported the alleged conduct “shall not be a public record, and shall not be disclosed for any other purpose other than criminal investigation or criminal prosecution.” It also requires the district attorney to request “and the court shall enter” a protective order preventing release of the identity of the person who reported the alleged crime.

15 – Immigration report

(Public Chapter 998, SB2158 / HB2774 by Sen. Ferrell Haile, R-Gallatin, and Rep. Jake McCalmon, R-Franklin)

After a long preamble that blames the Biden administration for illegal immigration problems, this new law requires the district attorneys general conference to collect and analyze data on anyone charged or convicted of a criminal offense in Tennessee who is not in the country legally. The district attorneys must publish a report on a website and deliver a report to the governor and speakers of both houses beginning Jan. 31, 2025. Also, the Department of Correction must  report the cost to hold such people.

16- Access to more court data on the horizon

(Public Chapter 947, SB2689 / HB 2930 by Sen. Dawn White, R-Murfreesboro, and Rep. Cameron Sexton, R-Crossville)

The Administrative Office of the Courts is tasked in this new law for developing a centralized case management system that includes electronic case filing, data reporting and “any other capability deemed necessary for collection and reporting of all state and local court public case level data.” There is no deadline for completion, but the office must given a written update beginning on Jan. 31, 2025, and every six months thereafter to the governor and various legislative committees. Clerks are likewise required to install the system provided by the administrative office of the courts (eventually) with the Adminsitrative Office of the Courts providing each court clerk with a list of the data that is required to be reported under the Tennessee Supreme Court rules.

17- HIPAA update

(Public Chapter 931, SB2012 / HB 2011 by Sen. Shane Reeves, R-Murfreesboro, and Rep. Kevin Vaughan, R-Collierville)

This law defines the requirement of health facilities such as nursing homes and health professionals to abide by privacy provisions of the federal Health Insurance Portability and Accountability Act (HIPAA) for electronic medical records. It also provides for injunctive relief and financial penalties for violations.

18- Personnel who do health facility inspections

(Public Chapter 932, SB2022 / HB2650 by Sen. Shane Reeves, R-Murfreesboro, and Rep. Esther Helton-Hayes, R-East Ridge)

This bill revised the law regarding the health facilities commission that inspects and licenses health care facilities. It included a section that makes confidential information about state personnel who investigate complaints or conduct inspections. The employee’s confidential information includes home addresses, photographs, telephone numbers, dates of birth and information about their spouses and children.

bills that failed or were taken off notice

1 – Meetings of state college boards and county commissions

(SB2371 / HB2324 by Rep. Mark White, R-Memphis, and Sen. Shane Reeves, R-Murfreesboro)

The bill would have allowed boards of state universities to close meetings to the public to discuss “sensitive topics” and other issues outlined by the bill. The bill was broad and it was unclear what could be defined as “sensitive topics.” Also, there was no requirement that the board announce its topics before it went into closed session. TCOG along with TPA and TAB opposed this bill. The bill failed in the House Higher Education Subcommittee. It was not heard in the Senate.

2 – Third party intervention in a public records lawsuit

(SB 2105 / HB2419 by Sen. Todd Gardenhire, R-Chattanooga, and Rep. Jody Barrett, R-Dickson)

This bill would have clarified the public records law to prohibit anyone but the person who requested to inspect public records from being a party in a public records lawsuit. The bill was brought at the suggestion of TCOG after the Court of Appeals decided in a case involving crime records of the mass shooting at the Covenant School that because the public records law does not specifically prohibit a third-party from intervening in a public records lawsuit, they could be allowed. Parents of students at the Covenant School, the school and the church that runs the school intervened in a lawsuit to prevent police from releasing the Covenant School shooter’s manifesto, claiming copyright and victim’s rights.

The bill passed the Senate State and Local Committee and the House State Government Committee. After the bill passed on the Senate floor, but the Covenant families lobbied against it in the House. The House sponsor tabled the bill on the last day of the session, not bringing it to a vote.

3 – Stronger public notice

(HB 2890 / SB2798 by Rep. Chris Todd, R-Jackson, and Sen. Paul Rose.)

Rep. Chris Todd filed the bill after complaints from constituents in Jackson over access to complete agendas in a timely fashion. The bill imposed more specific notice requirements for governmental bodies, and a greater number of places for the notice to be posted. An amendment also required government to post its agenda five days before the meeting where the public can see it. The bill failed in the House Public Service Subcommittee. Several government agency lobbyists did not like certain parts of the bill.