Knoxville Mercury: Tennessee’s Open-Government Laws Are Outdated and in Danger of Being Undermined

Good piece of reporting by S. Heather Duncan of the Knoxville Mercury on recent goings-on with the Tennessee Public Records Act.

Duncan compiles some examples…

In the first four months of this year, Knoxville has seen open meetings violations by its 911 board, including the police chief and sheriff; the state Legislature has acknowledged that most of its committees have been regularly holding secret “pre-meetings”; and legislators floated about 25 bills that either attempted or succeeded in reducing public access to records and meetings. Over the last year, several local governments across the state lost high-profile court cases because they “willfully” withheld documents from the public, and still others got away with illegally charging for people to simply look at public records.

The light is getting dim.

Duncan interviews people about proposed changes in the public records laws, including a proposal during the most recent legislative session that would have fundamentally changed the law and levied new fees on citizens and journalists to see public records. The sponsors put the brakes on the bill, recognizing the need to study the issue more.

The legislative sponsors weren’t the only ones with concerns. Those who represent government agencies had qualms, too:

David Connor, executive director of the Tennessee County Services Association, says he doesn’t think burdensome record requests are a widespread problem, although he has heard anecdotes about politically-motivated efforts to cripple an office with a broad request. “There’s probably a way to go at it by restricting people from harassing an office or official, rather than charging for the inspection of records,” he says.

…School board member Lynn Fugate, who also serves on the board of the Tennessee School Boards Association, suggests that any new law should include a specific definition of an “excessive” request. She says it’s best the bill didn’t pass without broader study. “It was sort of like taking a sledgehammer to put in a nail,” Fugate says. “So let’s find the right tool to deal with the right abuse.”

She also quoted TCOG:

“We also don’t want a situation where fees might be used by a government official as a way to block access,” she says. “(Public records are) a responsibility of government. But if governments see it as a burden, I don’t think being able to charge citizens per hour and create a new revenue stream is going to prompt a local government to look for ways to be more efficient.”

Duncan also outlined the back-and-forth during the session on a bill that would have allowed governing bodies to go into a closed session to discuss real estate transactions.

The Tennessee Press Association worked with the sponsors on the bill to try to mitigate the impact of more closure, with suggestions that all governing boards follow a few simple rules that are common in many other states when entering executive sessions.

More local government meetings could have been closed, too, under a bill sponsored by Republican Sen. Jack Johnson. He says officials with his hometown of Franklin asked for a law change to allow closed meetings (“executive sessions”) to consider real estate purchases. He says they were concerned that discussing specific property in public would drive up its price.

Johnson worked with the Tennessee Press Association to craft the bill. In exchange for agreeing to support it, the association asked for requirements which would have lit a candle for openness: Boards would have to notify the public before holding an executive session, begin the meeting in public, give a reason for closing it, and hold a vote to do so.

Under an amendment added to the bill, these requirements would have also applied for the first time to meetings that are closed for the purpose of discussing a pending lawsuit. The legal right for boards to consult their lawyer about this behind closed doors was established through a court case, says Frank Gibson, public policy director for the Tennessee Press Association. In the absence of clear state law, boards can discuss lawsuits without notifying the public that they will be together at all.

“We tried to get it in code in 2007, and we got the shit kicked out of us,” says Gibson, who literally wrote the book on Tennessee’s sunshine laws, Keys to Open Government.

It didn’t go much better this time. Sen. Johnson says the City of Franklin objected, claiming it needed to be able to have closed meetings about lawsuits on short notice without notifying the public. “They said the bill would do more harm than good,” he says, so he’s going to see that it dies.

Knox County Commission Chairman Brad Anders says he doesn’t see the need to close meetings dealing with real estate purchases. “If we’re looking to build something, like a school for example, the public knows it anyway because it’s in the capital plan,” says Anders, who with other commissioners will soon be considering the Knox County school board’s request to fund several new schools. “I really don’t see how you facilitate the public not knowing you’re trying to plot something.”

You can read Duncan’s full story here: Tennessee’s Open-Government Laws Are Outdated and in Danger of Being Undermined.

What do you think?