Tennessee Coalition for Open Government is tracking several bills this legislative session. Here is a summary on the main ones.

Bill to eliminate free inspection of public records

SB 2534 / HB 2635. This bill would allow custodians to charge citizens seeking to only view public records any costs for locating, redacting and producing records. Currently, the law only permits labor charges if a citizen requests copies. The sponsors of the bill, Sen. Ferrell Haile, R-Gallatin, and Rep. Dave Wright, R-Knox County, filed the proposal at the request of the Tennessee Association of Police Chiefs. The bill is similar to one in 2015 (requested by the Tennessee School Boards Association) that resulted in a summer study by the Office of Open Records Counsel. The Office of Open Records Counsel asked for public comments and held public hearings in the three grand divisions of the state. Its report noted: “Most comments received expressed a viewpoint opposing any fees for inspection.”  After the study was delivered to the General Assembly in early 2016, the sponsors withdrew their bill.

The elimination of free inspection would likely lead to members of the public being blocked from accessing public records if they can’t afford to pay the labor charges. Currently, there are few limits on labor charges and little transparency or control of how the number of hours for labor are calculated. Sometimes, attorneys are employed to review the records for possible redactions, raising the per-hour labor fee even higher. It is not unusual to see a request for copies of public records to run in the hundreds of dollars, and even thousands.

Tennessee Coalition for Open Government opposes eliminating free inspection of public records because we believe that the bill will result in citizens not being able to access public records because of the cost.

Body camera footage

SB 2061 / HB 1957. This bill would extend a public records exemption for certain footage captured on law enforcement body camera for another five years, until July 1, 2027. The bill makes “confidential and not subject to public inspection” video of minors in a K-12 school and video inside health care facilities, mental health facilities, substance abuse facilities, nursing homes and other similar facilities licensed by the state.

When enacted, the exemption was given a 2022 repeal date as a way to allow a new examination of the exemption. TCOG opposes extending the exemption as written because we believe law enforcement footage inside those facilities should be released to the public and subject to the public records act when the footage involves an action by law enforcement that is under review, with appropriate redactions.

This is the current language in the law that would be extended under the bill:

(1) Video taken by a law enforcement body camera that depicts the following shall be treated as confidential and not subject to public inspection:

(A) Minors, when taken within a school that serves any grades from kindergarten through grade twelve (K-12);
(B) The interior of a facility licensed under title 33 or title 68; or
(C) The interior of a private residence that is not being investigated as a crime scene.

(2) Nothing in this subsection (u) shall prevent the district attorney general or attorney general and reporter and counsel for a defendant charged with a criminal offense from providing to each other in a pending criminal case or appeal, where the constitutional rights of the defendant require it, information which otherwise may be held confidential under this subsection (u).

(3) Nothing in this subsection (u) shall be used to limit or deny access to otherwise public information because a file, document, or data file contains some information made confidential by subdivision (u)(1); provided, that confidential information shall be redacted before any access is granted to a member of the public.

(4) Nothing in this subsection (u) shall be construed to limit access to records by law enforcement agencies, courts, or other governmental agencies performing official functions.

(5) This subsection (u) is deleted on July 1, 2022, and shall no longer be effective on and after such date.

The bill is being carried by John Gillespie, R-Memphis, and Jack Johnson, R-Franklin.

Death in custody

SB 2802 / HB 2613. This bill would add a new subsection to current law to require that jails and prisons maintain a record of deaths of prisoners. In addition to the name and age of the person who died, the cause of death would have to be included. The record would be a public record subject to public inspection.

The bill is carried by Sen. Kerry Roberts, R-Springfield, and Rep. Jeremy Faison, R-Cosby. Currently, sheriffs and the Department of Correction are required to report to the Tennessee Bureau of Investigation the death of an individual in jail or in prison, but no requirement exists that a record be kept by the local institution.

Tennessee Coalition for Open Government supports this bill and has worked on it with Just City of Memphis. TCOG became aware that at least some sheriffs do not keep a record of deaths of prisoners in their jails after a public records requester was told as much. The information is important to increase understanding of operational challenges at the jail for the public. Also, basic human respect for life warrants a proper recording of a death of a person in a local jail or state prison.

Here is the language that would be added to the law under the proposed bill:

(e) All government entities required to report under this section shall maintain a
record of deaths of individuals in custody as defined in subdivision (d)(1) that is open for
public inspection and that contains:

(1) The identity and age of the deceased individual;
(2) The time and date of the death;
(3) The cause of death as determined by the county medical examiner when the cause of death has been determined by the county medical examiner pursuant to § 38-7-108; and
(4) Facts concerning the death of the individual that are in the possession of a government entity, provided that information that is relevant to
an ongoing investigation may be redacted.

Electronic meetings of state boards and commissions

Two different bills seek to rework Section 108 of the Open Meetings Act, which governs how state boards and commissions may allow its members to participate in meetings by electronic means. This part of the code has existed since 1990, receiving updates in 1999, 2012, 2017 and 2020. Read more about the history of Section 108.

TCOG supports SB 2889 / HB 2864 sponsored by Sen. Todd Gardenhire, R-Chattanooga, and Rep. Tim Rudd, R-Murfreesboro. This bill does not expand or reduce the ability of a state board or commission to allow its members to participate electronically but creates a new requirement that when the governing body uses electronic means for a meeting, it allow members of the public to view or listen to the meeting remotely by electronic means as well.

The bill requires that public notice of the meeting include information for someone to view or listen to the meeting. It also requires the governing body to record the meeting and place the recording on the website that contains information about the governing body and its meetings at least three days after the meeting. The bill prohibits the governing body from requiring a member of the public from registering in advance to view or listen to the meeting, although it would allow such registrations for someone wishing to provide public comment.

The bill also requires that individual members of governing boards covered by Section 108 attend at least 50 percent of the meetings in person and calls for removal of a member who doesn’t achieve 50 percent in-person attendance for two consecutive years.

This proposed legislation leaves intact the requirement that state boards and commissions have a physical quorum to allow a member to participate electronically.

It also leaves intact the current law that a state board or commission that wants to meet all electronically, without a physical quorum, must make a determination of necessity, document the facts and circumstances in its minutes and file a “statement of necessity” with the secretary of state.

The bill also leaves in place the definition of “necessity” as “matters to be considered by the governing body at the meeting require timely action by the body, that physical presence by a quorum of the members is not practical within the period of time requiring action, and that participation by a quorum of the members by electronic or other means of communication is necessary.”

Administration bill: The second bill seeking to rewrite Section 108 is proposed by Gov. Bill Lee’s administration. It is SB 2394 / HB 2141, carried by Jack Johnson, R-Franklin, and John Ragan, R-Oak Ridge.

The administration’s bill would expand the ability of state boards and commissions to meet by electronic means without having a quorum of members present at a physical location. It requires that state boards and commissions meet only once a calendar year in person.

The administration bill removes the requirement that state boards and commissions make a determination of necessity to hold an all-electronic meeting (such as telephone conference call or Zoom meeting). It also removes the report to the Secretary of State’s office documenting the necessity.

The bill requires that the board make the meeting held by electronic means accessible to the public. But it doesn’t prohibit making a person register in advance to view or listen to the meeting electronically. It also makes no provisions for people to give public comment in an electronic meeting.

The administration bill also eliminates language that prohibits a per diem for a member participating by electronic means, replacing it with language that prohibits a per diem “if the eligibility for compensation is dependent upon the member’s physical presence at the meeting.” It is unclear if that would result in compensation to members attending meetings electronically.

The bill applies to state boards and commissions that are “administratively attached to the executive branch of state government.” We requested, but have not yet received, a list of such boards. One person put the number of such boards at more than 200. One example of a board that is administratively attached is the new Megasite Authority of West Tennessee.

TCOG opposes the administration bill as currently proposed, but expects an amendment to be filed. TCOG would like to see stronger provisions on electronic access to the meetings, public notice that doesn’t require a person to register or email a government entity for instructions to view or listen to a meeting, ability to provide public comment by electronic means, and a recording of all meetings held electronically posted to a website. TCOG also would oppose public hearings held only by electronic means.

Clarity in public records process

Finally a bill that seeks to add clarity in the statute about the public records request process is being carried by state Sen. Todd Gardenhire, R-Chattanooga, and state Rep. Sam Whitson, R-Franklin.

The bill, SB 1682 / HB 1854, clarifies that if state law is the basis of denial of the record, state law should be cited. It also seeks to clear up confusion about whether a citizen must name the specific title of a record in a public records request since most citizens don’t necessarily know the title of a record. The request must be sufficiently detailed to enable the government custodian to identify responsive records, but a specific title would not necessarily be required. Finally the bill would clarify that the identification acceptable in making a request is a driver’s license, but if the person doesn’t have a driver’s license, the identification must evidence a person’s residency in the state.

Other bills we’re tracking:

SB 2117 / HB 2125  – Requires that proprietary information submitted by commercial operators to the department of environment and conservation regarding the operators’ commercial or financial information be treated as confidential and not be open for inspection by members of the public.

SB 2049 / HB 1684 – Requires a member of a county legislative body to declare a conflict of interest with respect to a proposed county budget, appropriation resolution, or tax rate resolution prior to casting the member’s vote.

SB 1915 / HB 1989 – Enacts the Interstate Compact Between the States of Arkansas, Mississippi, and Tennessee Creating the RegionSmart Development District and the RegionSmart Development Agency of the Greater Memphis Region.

SB 2724 / HB 2716 – Expands to all people, rather than just minors, the confidentiality protection pertaining to photographic evidence of a fatal motor vehicle accident.

SB 2725 / HB 2308 – Specifies that photographic evidence depicting the remains of a deceased minor is confidential and not open for inspection by members of the public; provides that the custodial parent or legal guardian of the deceased minor may waive confidentiality and allow the minor’s photograph to be used and obtained in the same manner as other public records.

SB 2726 / HB 2082 – Expands a municipal court’s jurisdiction to include expunction of a conviction for a violation of a municipal ordinance.

SB 2106 / HB 2551 – Requires that materials related to competitive sealed bid proposals be open for public inspection after the intent to award the contract is announced; authorizes local governments to require interviews, presentations, or demonstrations for purposes of clarifying or understanding the bid proposal; prohibits disclosure of information from such interviews, presentations, or demonstrations to another respondent during negotiations for the contract.

SB 1774 / HB1677 – As amended, allows a county legislative body to provide notice of a special called meeting for the public by posting the notice in a location where a member of the community may become aware of such notice and on a website maintained by the county if the county has a website; including in the contents of the notice a reasonable description of the purpose of the meeting or action to be taken; and posting the notice at a time sufficiently in advance of the special meeting in order to give citizens an opportunity to become aware of and attend the meeting.