New laws passed in 2017 affect access to public records

TCOG Legislative Report 2017

Following is a summary of new laws affecting access to government information.

They include 7 new exceptions to the Tennessee Public Records Act, 2 existing exemptions partially rolled back, 1 new law improving access to records in general, 1 new law creating criminal penalties for releasing certain confidential information, and 3 new laws improving government records for better accountability.

1 – Requiring acceptance of public records requests through email

State Rep. Courtney Rogers, R-Goodlettsville

State Rep. Courtney Rogers, R-Goodlettsville, brought this legislation after an expensive legal dispute in her home county of Sumner County where the school district refused to accept public records requests by email. 

The new law requires government entities to accept emailed requests to inspect or get copies of public records “if the governmental entity uses email to transact official business.” Other forms of requests are also allowed, including through an internet portal.

Initially, the bill did not appear to have enough support to pass out of the House State Government subcommittee, its first hurdle.

One concern by a handful of lawmakers was that if the process became too easy and requesters were not required to put forth more effort in making the request, such as appearing in person, there would be an increased number of frivolous records requests. Also, the Office of Open Records Counsel had just established its model public records policy, which did not explicity require government entities to accept records requests by email.

Those concerns prompted an amendment by one of the bill’s supporters, state Rep. Darren Jernigan, D-Nashville, that was incorporated into the final legislation and could put the “frivolous requester” complaints to rest.  Records requesters should pay attention to these new  provisions:

1 – A government entity may now temporarily decline to fulfill a request to inspect records if a requester has made two previous requests within a 6-month period for which he/she failed to show up to view the record within 15 business days of the record being made available to view. The government entity can decline to fulfill requests for a period of 6 months from the date of the second “unviewed” request. This language is permissive, and the government entity can determine there was good cause for failure to view and continue to fulfill requests.

2 – A government entity may decline to fulfill a request for copies of public records if a requester has not paid for copies under a previous records request. However, this applies only if the requester had been provided with an estimated cost of the records and had agreed to pay that estimated cost. It will be important for requesters to not give agreement to pay estimated costs of copies unless they are committed to paying the cost of copies. One problem to watch for could be estimates that are much lower than the final costs given to the requester.

Despite its early prospects, the support of Rep. Bob Ramsey, R-Maryville,  Jernigan, and Rep. Bud Husley, R-Kingsport, helped the bill emerge out of subcommittee. State Rep. William Lamberth, from Sumner County, also spoke in favor, and the amended bill eventually passed on a 96-0 vote on the House floor. (The bill was successfully carried in the Senate by Mike Bell, R-Riceville.)

Tennessee Coalition for Open Government wrote a letter explaining why the bill was needed and sent it to all House State Government Committee members. Members of the League of Women Voters contacted representatives on the committee to urge support. The Knoxville News Sentinel gave news coverage of the bill as did conservative web outlet, the Tennessee Star. The News Sentinel editorialized in favor of its passage.

2 – Body camera video

While there are many concerns and questions about body cameras, lawmakers focused largely on protecting citizen privacy by making some footage exempt from the Tennessee Public Records Act. Following is exempt:

  • Footage of minors when taken within a school that serves any grades from kindergarten through grade 12.
  • The interior of a facility licensed under title 33 or title 68. This covers covers mental health and intellectual disabilities facilities, and a wide array of health care facilities, including hospitals and nursing homes.
  • The interior of a private residence that is not being investigated as a crime scene.

A “sunset” was put on the bill so that its provisions expire on July 1, 2022.

3 – TBI records

State Sen. Lee Harris, D-Memphis, presenting legislation in the Senate Judiciary Committee to open up TBI records in police-involved shootings.

Lawmakers adopted a provision to allow access to “the investigative record” of the Tennessee Bureau of Investigation when the agency investigates law enforcement officer-involved shooting deaths.

TBI has long had an exemption to the Tennessee Public Records Act that makes all of its investigative records confidential, even after a case is closed, unlike local law enforcement.

Public access to TBI records in officer-involved shooting death cases may take place only after “the completion of the prosecutorial function by the district attorney general” although the district attorney may “disclose all or part of the investigative record to the public prior” to this.

Prosecutorial function is not defined in the legislation, but was described as at the completion of the charging decision, or at the end of the trial and any associated appeals. In other words, once the district attorney has decided not to charge an officer, the investigative record would be public and available to view. If the district attorney has decided to charge, and the grand jury indicts, the investigative record may remain confidential under the Tennessee Public Records Act until the case is over.

TCOG testified on behalf of this bill before the Senate Judiciary Committee.

4  – Proposed economic development contracts

Under this new law, cities and counties that negotiate economic development contracts may keep those contracts confidential until the proposed contract is made available to members of the respective governing bodies. The purpose of the sponsors was to allow economic development staff of a municipality or a county to negotiate in confidentiality to prevent other cities and counties from finding out who they were negotiating with, or their proposed terms, and competing with them. Once a member of the governing body is provided a proposed contract or agreement, the documents are open for public inspection.

Also, the new law requires a governing body to “publicly disclose the proposed contract or agreement in a manner that would adequately notify and fairly inform the public of the proposed contract or agreement before voting on the proposal.”

This disclosure provision, which TCOG advocated, should allow journalists (and citizens) the ability to find out about such proposals in advance through a meeting agenda and assure them advance access to detailed information, including “all supporting records and documentation” to the proposed contract before a governing body votes. It also would allow members of a governing body to share any of documents with journalists or citizens once they have a copy themselves.

Concern was raised in a House State Government Committee meeting by some lawmakers who asked if the legislation could prevent members of governing body, such as a county commissioner, from getting access to information about proposed economic development agreements. The staff attorney for the House State Government Committee said it was his opinion that the legislation would not prevent members of a governing body from gaining access to any documents at any time because they, as members of the governing body, would be a party to any proposed contract.

This bill was brought by state Rep. Sam Whitson, R-Franklin, and state Sen. Joey Hensley, R-Hohenwald, after a request from the city of Spring Hill. It has been a perennial request from cities and counties who say that the Tennessee Department of Economic and Community Development has a similar exemption. The original bill was modeled after the state exemption. However, the bill that passed does not contain some provisions of the state exemption. For example, the ECD commissioner has discretion to keep additional information confidential even after a contract is signed, but this provision was stripped from the county-municipality bill. The bill does allow for trade secrets of the company to remain confidential after a contract is signed.

5 – Residential addresses

Last year, a statute was enacted defining “personally identifiable information” in government records that would be confidential. The list included information that is normally not shared, but also swept in residential addresses (boldface added):

  • Social security numbers
  • Official state or government issued driver licenses or identification numbers
  • Alien registration numbers or passport numbers
  • Employer or taxpayer identification numbers
  • Unique biometric data, such as fingerprints, voice prints, retina or iris images, or other unique physical representations
  • Unique electronic identification numbers, addresses, routing codes or other personally identifying data which enables an individual to obtain merchandise or to otherwise financially encumber the legitimate possessor of the identifying data.

Residential street addresses are already confidential in some circumstances and for specific safety reasons under existing provisions in the Tennessee Public Records Act, such as for law enforcement personnel, victims of domestic violence and domestic violence shelters.

However, residential addresses have traditionally been freely given by citizens and exist in a wide array of public records, such as property records, that are regularly accessed by the public.

Because of the broad nature of the exemption, state Rep. Bill Dunn, R-Knoxville, and state Sen. Richard Briggs, R-Knoxville who had sponsored the original legislation sponsored another bill to remove addresses from this part of the statute.

This bill succeeded with no opposition and was signed by the governor.

6. Minor crime victims

Among new laws regarding public records is one makes confidential the identity and identifying information of minor victims of criminal offenses.  This includes:

  • Name
  • Home, work and email addresses
  • Telephone numbers
  • Social security number
  • Any photographic or video depiction of a minor victim
  • Whether the defendant is related to the victim unless the relationship is an essential element of the offense

The statute allows a custodial parent or legal guardian to petition the court to waive confidentiality. It also states that it does not restrict “Rule 16 of the Tennessee Rules of Criminal Procedure” which governs discovery, nor does it prevent disclosure required by the state or federal constitution.

The new law also specifically allows law enforcement to release identifying information “for the purposes of locating and identifying missing, exploited, or abducted minors.”

7 –  Release of law enforcement officer addresses

A new law makes it a crime to release the residential street address of any law enforcement officer in the state. A person who releases such information can be charged with a Class B misdemeanor, punishable by $500 fine, if found to act with criminal negligence. Someone who knowingly releases the confidential information can be charged with a Class A misdemeanor. Sponsors were Rep. Mike Carter, R-Ooltewah, and Sen. Mike Bell, R-Riceville.  The information was already confidential under the Tennessee Public Records Act; the change adds criminal penalties.

8 – Names of vendors of data storage systems

When describing this bill, the sponsors said it would clarify an exemption regarding confidentiality of vendor names that passed last year. Like last year, this was a Haslam administration bill. Under last year’s change, lawmakers agreed to make confidential the identity of state government vendors who provided goods and services used to protect employee or citizen information and government property. Government property was defined as electronic information processing systems, telecommunications systems or other communications systems. This year’s bill expanded the list to include vendors whose services protect the state’s data storage systems.

Lawmakers expressed concerns over this bill, not from the perspective of what citizens would know, but rather about their own access to such information.

State Sen. Ken Yager, R-Kingston, who is chairman of the Senate State & Local Government Committee, pressed as to whether this meant lawmakers who sit on the Fiscal Review Committee would see fewer redactions in the contracts they now review.  He noted an increase in the redactions. The sponsor did not know if it would reduce redactions, and the question went unanswered.

In the House, the State Government Committee added an amendment to allow a member of the General Assembly access to the name of the vendor, although it required that the lawmaker keep the identity of the vendor confidential from the public.

The exemption allows local government entities to make the vendors name confidential upon a vote by the governing body.

9 – Guest record information at state parks

Requested by the Haslam administration, this new law makes confidential certain information related to guests of state parks, including records the guest’s name, phone numbers, addresses, reservation information and transaction information.

10 – Exam questions for health care licensing

As part of a bill dealing with investigations into health care providers, this legislation also contained a provision adding an exemption to the Tennessee Public Records Act that makes confidential examination questions, answer sheets, scoring keys or other examination data used for the purpose of state licensure, certification or registration of health professionals.

A person who has taken an exam has the right to review their own completed exam. And final exam scores of people licensed, certified or registered as health professions are open.

Also, this new law updates a previous provision in 63-1-117(f) that makes complaints and investigative documents against health care providers confidential until after formal disciplinary charges are filed. The update says that the records are also not subject to a subpoena during this period.

11 –  Job creation reporting related to tax credits

This new statute requires the Commissioner of Revenue to report no later than Jan. 1 each year to the Finance, Ways and Means Committees of the House and Senate certain information about certain tax credits for the previous fiscal year.

The advantage of this bill to the public is that it creates a public record on information that is not now compiled and otherwise inaccessible because of confidentiality of the underlying data.

The report must include:

  • The number of taxpayers claiming the credit
  • The total amount of the credit claimed
  • The number of jobs created during the fiscal year as reported by the taxpayer, if the credit is awarded based on jobs created
  • The total amount of credit carried forward from a prior tax year
  • The nature of the business of the taxpayers claiming the credit

12. Bus safety complaints

After the Chattanooga bus accident that killed six schoolchildren late last year, the Haslam administration worked on and proposed reform legislation to better track and address safety complaints against bus drivers.

For the purposes of public records requesters, it requires local school boards to prepare a report within 48 hours of a complaint for the director of schools that includes the time and date of the complaint, a summary, the driver involved, and previous complaints or disciplinary action of the drivers. Within 60 days, a final report is required that explains the findings of the investigation. The new law also requires collection and maintenance of bus maintenance and inspection records, and driver training records and credentials.

This should help journalists who are covering school bus accidents. In the aftermath of the Chattanooga accident, TCOG heard from journalists in two cities who requested complaint records only to find no systematic record-keeping and, thus very large labor costs or time needed to compile information.

13. Applicants for director of Tennessee State Museum

This new law allows applications and application materials for the job as director of Tennessee State Museum to be confidential until the search committee has selected finalists for the position. The finalists must be publicly announced no fewer than 15 calendar days before a final vote to fill the position.

This exemption is similar to an exemption allowed during the search to fill the top position of universities.

14. Allowing meetings by electronic means by Emergency Communications boards

This new law allows members of emergency communications boards to participate in meetings electronically, such as through conference call, but requires them to abide by rules already established in the Open Meetings Act for meetings conducted electronically, including requirements for public audibility.

15 – Disclosure of lawmaker gifts

After news stories about lawmakers receiving free travel from people interested in influencing legislation, the General Assembly passed a new law that requires members to disclose travel expenses paid on behalf of any member with an interest in public policy. It states that disclosure applies when the purpose of the travel is for informing or advising the lawmaker with respect to public policy.

The law exempts from the new requirement travel paid for by an “established and recognized organization of elected or appointed state government officials, staff of state government officials, or both officials and staff, or any other established and recognized organization that is an umbrella organization for such officials, staff, or both officials and staff.”

State Sen. Doug Overbey, R-Maryville, who sponsored the bill said the “exemption” was in response to lawmakers who wanted to not have to disclose travel paid for by organizations such as the National Conference of State Legislatures.

What do you think?