Bill would create 3-state governmental agency not subject to any state’s public records laws

A bill that would create a three-state interstate compact agency with eminent domain powers for economic development in the Memphis region would not be subject to Tennessee’s public records or open meetings laws, according to an expert in the state’s Office of Open Records Counsel.

The legislation would allow Tennessee to enter into a compact with Arkansas and Mississippi to create the RegionSmart Development District and the RegionSmart Development Agency of the Memphis Region. The purpose of the organization would largely be economic development. Its 15-member board would include five Tennessee members appointed by the city of Memphis, Shelby County, Fayette County and Tipton County.

The exercise of eminent domain by the RegionSmart board “shall have the additional requirement that all of the commissioners in whose state the subject property is located must vote in favor of any such decision to exercise that authority.”

In addition to eminent domain authority, its purpose includes building and maintaining roads, airports, industrial parks, commodity storage facilities, sewage disposal plants, bridges, tunnels, terminal facilities, and facilities for the disposal of waste.

Lee Pope, the Open Records Counsel for the state of Tennessee in the Comptroller’s Office, said that while he is not an expert in multi-state compacts, the compact would need to declare the authority is subject to the Tennessee Public Records Act and the Tennessee Open Meetings Act for those laws to be binding upon the agency.

The legislation states its purpose that “RegionSmart Development be conducted in a transparent and inclusive manner” and would adopt “an open records or ‘sunshine’ policy governing the availability of the records and matters of the organization and drawing upon as examples such laws of the states and, to the extent possible, combine the provisions of the laws of the states where such laws are similar into a comprehensive policy for RegionSmart Development.”

However, the public records laws are different in Tennessee, Mississippi and Arkansas. And each state has separate enforcement mechanisms. For example, in Tennessee, a person who is denied access to public records can bring a petition in a state court and win attorney fees if the government entity is found to have willfully violated state law. Its unclear what, if any, enforcement mechanism would be in place under a policy to be developed by the RegionSmart board.

Likewise, the open meetings laws vary between the states, especially when a governing body may close a meeting to the public.

On the East Coast where such interstate compacts have been more widely developed, citizens and journalists have run into trouble accessing records or attending governing body meetings. For example, the Delaware Attorney General in 2020 said that the Delaware-New Jersey Compact is not subject to Delaware’s freedom of information laws, and therefore a closed meeting of its governing body to discuss long-range planning did not violate Delaware’s open meetings requirements.

The Delaware-New Jersey Compact is not unlike the proposed Memphis Region interstate compact — its purposes are “advancing the economic growth and development of those areas in both states which border the Delaware River and Bay by the financing, development, construction, operation and maintenance of crossings, transportation or terminal facilities, and other facilities of commerce, and by providing for overall planning for the future economic development of those areas.”

Likewise, state public records and open meetings laws were found to not apply to an interstate transit compact that includes Virginia, Maryland and the District of Columbia. That compact has been in place since the 1960s to build the Metro subway. Access to records is often a problem, according to open government advocates there.

Here’s a resource suggested to me about interstate compacts that might shed more light: Developments in Interstate Compact Law and Practice 2020 by the American Bar Association. It includes reference to two public records lawsuits.

The bill is HB 1989 / SB 1915 and is carried by state Rep. Kevin Vaughn, R-Collierville, and state Sen. Page Walley, R-Bolivar.

In a House Business and Utilities subcommittee meeting last week, Vaughn said the compact would help them apply for grants from the federal government. The bill passed the committee.

The legislation is next up before the Senate Government Operations Committee on March 2 and the House Commerce Committee on March. 8.