Does Tennessee have too many exemptions to its public records law?

This week, the Tennessee Comptroller’s office released a list of 538 exemptions to the public records law passed by lawmakers.

Most of those — almost 450 — were added in the past 30 years, according to the best information the office could find.

But really, isn’t that one of the problems?

Comptroller Chief of Staff Jason Mumpower, who oversees the Office of Open Records Counsel, told lawmakers in his presentation that the exemptions “are a hodgepodge all over the Tennessee Code Annotated.”

It’s hard to tell exactly when some were created. He even acknowledged that they may have missed some, and if someone finds something not on the list, to let his office know.

When I began tracking open records legislation four years ago, my mentor and longtime Tennessee advocate for both a free press and open government, Frank Gibson, warned me that proposals to shut down information can easily slip by and slip into law.

There’s a section in the Tennessee Public Records Act for exemptions, but when a bill gets filed to make a class of government records confidential, few get tagged as a possible new exception to the public records act; some don’t even mention that they are related to public records. 

Frankly, we rely on lawmakers and others at the Legislature who value the public’s right to know about what government is doing to flag seemingly “hidden” bills and ask questions.

So what happens when a bill gets filed to close information? In the best case, there is a strong deliberative process by lawmakers about whether there is an evidence-based reason for creating the exception and, if so, serious thought given to how it affects the public’s right to know what government is doing.

Shouldn’t there be a process to examine if there is really a problem and see if there is a better way to solve it? There are 1,500 to 2,000 bills filed each year. We don’t always have that “best case” process.

The legislature was emphatic about open government when it wrote the Tennessee Public Records Act in 1957. The law codified previously recognized rights that the citizens of Tennessee should be able to find out and know what their government is doing and it defined public records widely. When the law was in doubt and an issue went to court, the legislature said that the public records act was to be construed broadly “so as to give the fullest possible public access to public records.”

Privacy has grown as a concern in the past several years as government has gathered more information about people, often stored in databases, and we as a society worry about what government and big business know about us.

Mumpower, in providing examples to lawmakers, mentioned that “retina images” are confidential. I did pause to wonder what retina images the government actually might have on me and why.

Significant, but outside the scope of his study, Mumpower noted that the 538 exceptions are by no means all the exceptions to the public records act. These are only the ones in the Tennessee Code. Other state law such as court rules, common law and administrative rules and regulations have been decided by the courts as making government records confidential.

For example, in recent years, we’ve seen an expansion of a “law enforcement privilege” which allows police and sheriff’s departments discretion over release of their crime records. News reporters were once able to look at blotters and get crime reports to report on crime in your local town and county. But some law enforcement departments now say this information is confidential. The General Assembly has never passed a statute that said people don’t have a right to know about crimes reported to police in their community.

Just last week, I heard of a mayor asserting “deliberative process privilege” to keep correspondence confidential that normally would have been assumed open.

These two “privileges” are very broad, easy to abuse, hard to overcome and never authorized by the people’s representatives in the Legislature.

Other exemptions that lawmakers did approve are being twisted beyond recognition. The “trade secrets” exemption, for example, is being used right now in Clarksville to keep secret the value of public property being gifted to a private corporation as part of an economic incentives deal.

In asking the Office of Open Records Counsel last March to compile a list of exemptions, Lt. Gov. Randy McNally and House Speaker Beth Harwell said it was in the interest of transparent and open government.

“We would like to review this list in order to remove or place in sunset at least some of the various exemptions,” they said in their March 2017 letter.

As lawmakers move forward and digest today’s report — and as the public digests how our right-to-know laws have developed over the past 30 years — my hope is that a focus can be placed on better processes to deal with questions about exemptions that the complexities of government produce. And that we look at exemptions that have gone too far.

Those public records exemptions that dim our understanding of government and shut the door too tightly on government accountability and public oversight will not serve any of us well in the long run.

Deborah Fisher is executive director of Tennessee Coalition for Open Government.