Gov. Bill Lee’s administration is seeking a sweeping exemption to the public records law that would make confidential any records of the Tennessee Department of Tourism Development that the commissioner determines are too sensitive to release.
The bill, HB1692 / SB 2093, is up for its first consideration in the House Public Service Subcommittee on Tuesday.
The proposed law is modeled after a similar exemption for the Tennessee Department of Economic and Community Development that was passed in 1988.
Tourism department could keep records closed for 10 years
However, it differs in the amount of time the “sensitive” information would be confidential. The tourism department would be able to keep such “sensitive” records and information confidential for 10 years while ECD may keep its so-called “sensitive records” confidential for five.
The other difference is the definition of “sensitive.” While both definitions are broad and subject to interpretation, the tourism department definition appears to be broader.
For ECD, sensitive information is defined as information that if disclosed “would seriously harm the ability of this state to compete or conclude agreements or contracts for economic or community development.”
For the tourism department, sensitive information is defined as information in which the “disclosure would adversely impact the department’s ability to carry out its statutory functions.”
Both the ECD exemption and the proposed new tourism development exemption give authority to the department’s commissioner to decide what’s sensitive, only having to get an “affirmative agreement” from the Attorney General’s Office.
The information could be kept confidential from anyone in public, including lawmakers, and it’s unclear whether committees of the General Assembly could force disclosure of information if they pass this exemption.
AG has signaled it doesn’t want ‘Monday-morning quarterbacking’ of state decisions
It’s far from certain that the Attorney General’s Office would serve as an effective backstop favoring public disclosure based on the office’s numerous positions on public records in the past.
For example, just two years ago, the Attorney General’s Office declared in a Davidson County chancery court during a public records challenge that they believed that consultant reports related to the state’s COVID response should be confidential because their release would allow “Monday-morning quarterbacking” of state decisions. (The governor’s office was eventually forced by the court to release the reports.)
So what type of records could be withheld?
The department funds the state’s visitor centers and gives grants to local cities and counties, regional tourism associations and chambers of commerce for tourism efforts. Any grants to local government would likely remain public as a local government record.
But the department, led by Commissioner Mark Ezell, also has received large infusions of money in recent years to increase tourism marketing and to work with private businesses to market their attractions, including through grants. Last year, the department got more than $8 million added to its budget. This year, another $9.5 million is proposed.
The deals directly benefitting private businesses may become the hardest to examine. While the proposed legislation says that the department’s binding contracts would become public — at least after the agreements have been signed — the law still allows such contracts, or certain details of contracts and agreements, to be confidential for 10 years if deemed sensitive by the commissioner.
Department could hide information on ventures to help Tennessee Titans owners
Gov. Bill Lee has been willing to put significant dollars into the visitor industry. While some funds have gone for state parks and local projects, the largest dollars have been committed to more ambitious projects, such as $500 million for the owners of the Tennessee Titans to help them build a new $2.1 billion stadium in Nashville. It’s widely expected the tourism department will spend significant money to try to lure to that new stadium a Super Bowl — all the records of which also could be kept confidential under the exemption.
In addition, currently, any documents on the outcomes of the marketing efforts — such as metrics on increased hotel night stays or visitor traffic — are open to the public, but if the bill passed, such information could be deemed sensitive by the commissioner as competitive information, a philosophy often used to explain why state information should be secret. Communications and internal reports that explain reasons for funding certain ventures could also be confidential. In general, visibility into the department’s work will decrease.
An example of a recent department project is one that was listed only as a $2.5 million “marketing project” in the governor’s budget, but later discovered through public information to be a program to give $250 airline vouchers to the first 10,000 people to book travel to Tennessee’s major cities in 2021. The aim was to help the hospitality industry recover from the COVID-19 pandemic, but the airline vouchers were largely panned as unsuccessful, even by disappointed lawmakers who said they would have rather seen more traditional marketing, particularly for rural areas. Under the proposed exemption, any information about such a project could be kept secret.
Reporting on outcomes could be reduced to what department wants to share
Because of the breadth of the proposed exemption and how the ECD exemption has been deployed to block public records requests on controversial issues, it is not unreasonable to project that many of the tourism department’s choices on how to spend its money and particularly any of its results (or lack of results) would quickly become off limits to the public. This secrecy by ECD about results has already been noted in audits by the Tennessee Comptroller’s Office in 2016 and again in 2020. The Comptroller found ECD did not adequately report information on job creation and other performance measures. (See: “Despite pushes for more accountability, economic development remains opaque in Tennessee.”)
The broad ECD exemption was passed during Republican Gov. Don Sundquist’s administration when Democrats had the majority in the Senate and the House. It has not been updated since then, and information about ECD deals remains murky, particularly the results about jobs created compared with jobs promised and who is receiving the largest tax breaks.
Lawmakers have been successful in adding only minimal annual reporting requirements on grant outcomes and tax breaks to companies. No additional visibility into ECD outcomes has been added during the Lee administration.
