(Posted June 11, 2021)

The 112th General Assembly began its work in January while still in the shadow of COVID-19. Members of the public were allowed to return in person to the Cordell Hull building committee rooms although they were initially prevented from attending Senate committee meetings in person. An appointment system designed to control the number of people milling around in lawmaker offices was quickly abandoned as being too cumbersome, and access returned to normal. Still, mostly lobbyists and government liaisons filled the halls and the committee rooms, where seating was socially distanced. Gone were the “days on the hill” sponsored by various advocacy groups and associations.

In all, lawmakers filed nearly 4,700 bills and resolutions. Some were related to experiences during the pandemic. For example, TCOG closely tracked multiple bills that would have extended the ability of governing bodies to continue meeting virtually, or partially virtually, post-pandemic. TCOG testified against the particular wording in some of these bills and, in the end, none passed.

We continue to see deterioration in access to information in crime and court records through statutes. But one proposal that has reduced transparency when adopted in other states failed in a committee vote. Supporters of Marsy’s Law sought to rewrite the victim’s bill of rights in the Tennessee Constitution to give victims standing in court and additional rights, including a right of privacy. The proposal failed largely because of opposition from law enforcement and prosecutors over cost and process concerns.

Highlighting that even lawmakers have difficulty getting law enforcement information, the General Assembly felt it necessary to pass a law to require the Department of Safety to provide each member any traffic accident report that results in a fatality in their district.

Below are the Top Five pieces of legislation tracked by TCOG, followed by other bills by subject.

1. Lawmakers reject expanding video and phone conference meetings

After a taste of using video or phone conference calls to conduct public meetings during the COVID-19 pandemic, several government associations pushed for laws to permanently allow members of governing bodies to attend meetings by phone or video without having to be there in person. Some touted the convenience and efficiency of not having to physically go to a public meeting to conduct business.

TCOG urged that the bills be set aside until the pandemic had ended and a comprehensive study could take place. As the bills moved forward anyway, TCOG raised questions about the uneven experience of electronic meetings from the public’s perspective during the pandemic, the difficulty for the public to follow along meetings in which some participants were joining by phone, and the slippery slope of normalizing meeting electronically instead of in person in front of constituents. TCOG also was specifically concerned about reducing citizen access to representatives and weakening public hearings and public comment periods.

The chairman of the Senate State and Local Committee, Sen. Richard Briggs, R-Knoxville, sponsored the broadest bill. He said he brought it at the request of the chairman of the Knox County Commission. It initially applied only to county commissions but was expanded to all municipal governing bodies and public utility boards.

The bill, SB301, would have allowed governing body members to participate remotely twice a year in a meeting for four reasons: medical emergency; family emergency; out of the county for work; or called into military service. The bill passed Briggs’ committee on a narrow 5-4 vote. But the House version, HB327 sponsored by Rep. Dave Wright, also a Knoxville Republican, failed in a voice vote in the House Finance, Ways and Means Subcommittee the following week.

Another bill carried by Sen. Jon Lundberg, R-Bristol, and Rep. Clark Boyd, R-Lebanon, would have allowed utility board members to patch in by phone or video conference to meetings for any reason. It failed in Senate State and Local. A separate bill that would have allowed remote meetings to continue if necessary because of the COVID-19 pandemic passed the Senate State and Local Committee but failed to move forward in the House. TCOG had supported this latter bill.

2. ‘Intent to disrupt government operations’ bill passes after three years of effort

A new law will allow government officials to seek injunctive relief in court from people who use the public records process “with an intent to disrupt government operations.” The bill was aimed at curbing public records requests from so-called “bad actors” but faced opposition when the legislation was first proposed in 2019 because it was built around a definition of harassment that some thought was too vague and broad. The rewritten legislation was signed into law as Public Chapter 242.

If the records custodian believes a person is making public records requests with an intention to disrupt operations, the custodian must notify the person in writing stating the specific problem conduct. If the conduct continues, the custodian can petition a court to enjoin the person for up to one year from making further public records requests.

The court must use the “clear and convincing” evidence standard to determine the person’s intent.

The law has a built-in tracking component. It requires a records custodian who seeks an injunction to file a written report with the Office of Open Records Counsel that includes the petition and any orders issued by the court. The open records counsel must include a summary of the reports in its annual report to the legislature. The law has an automatic repeal date of July 1, 2025.

3.  Addresses of people arrested become confidential

Home street addresses and telephone numbers of people arrested are confidential under a new exemption in T.C.A. §10-7-504. However, TCOG successfully requested an amendment be added so that the street address of the reported crime would not be confidential even if it was the home address of the person arrested. The city and zip code of the arrestee’s home address remain public. The exemption applies to records in possession of municipal and county law enforcement agencies and detention facilities.

The bill was sponsored by two Franklin lawmakers, Rep. Glen Casada and Sen. Jack Johnson, at the request of the Williamson County Sheriff’s Office. The attorney for the jail said that staff was overwhelmed with work in fulfilling requests from attorneys who sought the home addresses and phone numbers of people arrested, presumably to contact them about their services. The Tennessee Sheriff’s Association also advocated for the bill.

The original bill also made law enforcement video (such as body camera footage) confidential, but this provision was removed at TCOG’s request. Lobbyists for the consumer reporting industry requested and received a carveout that allows them access to the otherwise confidential information. (Public Chapter 555,  HB910 / SB572)

4. Law enforcement records involving a minor on school property gets extra confidentiality

The public records exemption regarding records of students in T.C.A. §10-7-504(a)(4) was expanded to make confidential “a record of a minor student” attending a K-12 school “that is created by a school resource or other law enforcement officer, or that is maintained by a law enforcement agency as the result of an incident involving the minor that occurred on school property and did not result in a charge of delinquency…”

The bill was carried by two Putnam County lawmakers, state Rep. Ryan Williams, R-Cookeville, and Sen. Paul Bailey, R-Sparta, at the request of the attorney for the Putnam County school board. Williams said the request arose after law enforcement investigated an incident between two minors involving the exchange of photographs. No charges were filed and the parents of one of the students wanted access to records in the incident, Williams said. The school district’s attorney told TCOG he did not release the records, but thought they may not be confidential under existing statutes.

TCOG testified against the bill, noting that another exemption, T.C.A. §37-1-154, already makes law enforcement records of juveniles confidential and appropriately provides for exceptions for some records to become public, such as for records in the interest of national security. The new exemption does not have a public interest exception. One scenario in which this could reduce transparency would be a school shooting in which a juvenile shooter died and thus was not charged. Under this exemption, it appears records associated with the investigation of the school shooting would remain confidential.

The bill passed anyway with lawmakers pointing out the need to protect juvenile confidentiality. (Public Chapter 391, HB368 / SB1598)

5. Marsy’s Law fails in committee vote

Known as Marsy’s Law after the national organization pushing the effort, HJR 44 sought to rewrite the victims’ bill of rights in the Tennessee Constitution to provide greater rights to victims, including standing in court to assert those rights. The measure failed in a 5-6 vote in the Criminal Justice Subcommittee.

The measure was sponsored by Rep. Patsy Hazelwood, R-Signal Mountain, who also is chair of the House Finance, Ways and Means Committee.

TCOG expressed concerns about a new “right to be treated with privacy” because in other states, this has resulted in names and locations of reported crimes being redacted from police and court records. TCOG advocated that the public deserves to know about crime in their neighborhoods and that public confidence in the administration of justice depends on transparency.

The bill was defeated, however, not on concerns about transparency but on concerns about cost and control of prosecutions.

A representative with the District Attorney’s Conference said the amendment would increase the number of cases in which victims must be notified from about 250,000 statewide to 1.3 million a year, largely because the constitutional amendment would apply to proceedings in General Sessions courts (plea hearings, bond hearings, initial appearances, etc…) and juvenile courts. Now, victim notification occurs in criminal courts after an indictment. The district attorneys estimated the cost of a victim notification system for all levels of courts would be about $16 million annually. Representatives with the sheriff and police chief associations and the Tennessee Bureau of Investigation also testified about increased and unfunded costs.

Concern also was raised about victims interfering with or delaying plea bargains, sentencing and other court actions, and possibly overturning work. One lawmaker said that a “cottage industry” for lawyers had developed in other states where Marsy’s Law had given victims standing in court.

The definition of a victim also caused heartburn. Currently, after a criminal indictment, an assistant with a district attorney will review a case file and make a judgment call on who suffered from the alleged crime. Victims may have to be identified earlier and the process could become more complicated.

While the committee voted against the bill, Hazelwood indicated interest in trying again with new language. The lobbyist for the Marsy’s Law organization said a companion resolution would be filed in the Senate once the language was worked out in the House. (HJR44)

State agency records

6. Finalists for president and chancellor positions at state colleges

Under a new law, the records related to candidates for positions of president and chancellor at all state colleges are confidential except for the finalists or finalist selected. The legislation continued an exemption set to expire and expanded it from covering only presidents to also cover chancellors.

The law allows a search committee to select and reveal a single finalist for a position, and limits the committee to selecting and revealing more than three. Once someone is selected as a finalist, the records related to the candidate cease to be confidential and must be made available to the public at least 15 days before the governing body can vote on the hire.

The issue of extending and expanding the exemption was considered by the Advisory Committee on Open Government, which submitted a report in December 2020 to the General Assembly. The committee evaluated the process of selecting state college presidents since 2018 when the exemption was enacted. During that time, eight college president positions had been filled, all at community colleges and colleges of applied technology. Among those, all presented at least two candidates as finalists. The new law has a repeal date of July 1, 2028 as part of the Senate’s efforts to put a sunset provision on all new public records exemptions. (Public Chapter 92, HB473 by Rep. Mark White, D-Memphis, and SB365 by Sen. Ken Yager, R-Kingston.)

7. Expansion of discretionary economic development tax credits

An administration bill expanded the discretionary (and confidential) tax credits that can be awarded by the state to offset a business’s franchise and excise tax liability even when the business does not qualify under the law. To qualify for a tax credit, businesses generally have to meet qualifications outlined in statute for that particular tax credit. But several parts of the code allow the state to give the credits to individual businesses that don’t meet statutory requirements if the commissioners of revenue and economic and community development determine that granting the credit is in the best interest of the state.

TCOG has advocated that the award of such discretionary credits should be public and not confidential. The state currently claims that discretionary tax credits are confidential under the “tax information confidentiality” exemption in TCA § 67-1-1702(a). The new legislation sponsored by the Lee administration, HB141 / SB736, expanded the discretionary credit system to include film and television productions. (Public Chapter 70)

8. Department of Human Services investigations into TANF fraud

In an administration bill dealing largely with modifications to the Temporary Assistance to Needy Families (TANF) program, a confidentiality exception was created for records associated with investigations by Department of Human Services. The investigations could involve TANF fraud and abuse or “misconduct by any employee, contractor, or agent of the department concerning or related to the operation of any department program or any laws, regulations or policies governing the department’s operations.”

The records cease to be confidential “upon closure of the investigation by the department and final adjudication of any administrative appeal … or the conclusion of all court proceedings in a criminal prosecutions…including the opportunity for direct appeal having been exhausted.”

After negotiation, the investigative exemption was modified to state that “operational records of a state agency, including the department, which are not investigative records or not otherwise protected under state or federal law or other legal authority, must remain open for inspection by members of the public.” (Public Chapter 515, HB142 / SB751, carried by House and Senate majority leaders Rep. William Lamberth and Sen. Jack Johnson)

9. State health insurance payment data

A bill was taken off notice that would have made confidential “proprietary information” provided to the division of benefits and administration for the purpose of administering the group insurance plans for public employees. The bill arose after then-state Rep. Martin Daniel of Knoxville sought to get payment data from the state agency in 2019 to see whether the state was reaping savings that it should on its health insurance plan. Daniel was chairman of the House Government Operations Committee that evaluates state government agencies and programs for efficiencies.

After Daniel sought the information, the three large health care companies who contract with the state to administer its self-funded plan — BlueCross BlueShield of Tennessee, Cigna and Optum — filed “reverse public records” lawsuits to prevent the state from releasing it. They said the information was proprietary because it reflected prices that the companies had negotiated with health care providers for medical and health procedures. They also claimed that releasing the data would violate federal antitrust laws.

This bill would have made that information confidential by statute but met opposition in the House. Despite an effort by the insurance companies to work out an amendment, the bill was eventually taken off notice by its House sponsor, Pat Marsh, R-Shelbyville. (HB134 by Marsh and SB169 by Sen. Jon Lundberg, R-Bristol)

10. Home address confidentiality program expansion

The home address confidentiality program run by the Secretary of State’s office allows relocated victims of domestic abuse, stalking, human trafficking, rape, sexual battery and other sexual offenses to keep their home address confidential. The program provides participants a substitute address that can be used to establish eligibility for public benefits.

The legislation revised the coverage and application process of certain co-applicants to the program. One change is that it removed the requirement that the relocated person be a Tennessee resident. (Public Chapter 140, HB1128 by Rep. Andrew Farmer, R-Sevierville and SB885 by Sen. John Stevens, R-Huntingdon)

11. Public notice for state sunset hearings no longer must be published in newspapers

A bill sponsored by the chairs of the House and Senate government operations committee removed a public notice requirement of sunset review hearings of government entities. The law had required notice of the hearings to be published in a newspaper of general circulation in each of the state’s major metropolitan areas: Nashville, Memphis, Knoxville, Chattanooga, and the Tri-Cities area composed of Bristol, Johnson City and Kingsport, 10 days prior to the hearing. Removing the requirement is expected to decrease state expenditures by $68,000. The new law requires the notice to be posted on the General Assembly website at least seven days before the hearing. The bill did not change requirements that all governmental entities must be reviewed at least every eight years and the public has a right to testify at the hearings. (Public Chapter 404, HB573 by John Ragan, R-Oak Ridge, and SB1081 by Kerry Roberts, R-Springfield.)

Invasion of privacy criminal statutes

12. Personal Privacy Protection Act

A new law makes it a criminal act for local and state government agencies to release information about donors to 501(c) organizations. A person with a local or state government agency who knowingly releases such information commits a Class B misdemeanor. The law also limits state and local government’s ability to acquire that information, but still allows the state comptroller and other state agencies access to donor information for the purpose of conducting audits, monitoring, verifying eligibility for benefits, conducting background checks or conducting an investigation.

The new law states that it does not prohibit any disclosures required by the state campaign finance laws, or the state’s ethics and lobbying laws. State colleges sought and received an exemption that would allow them to continue to release information about donors in their promotional material. (Public Chapter 516, HB159 by Rep. Ryan Williams and SB 1608 by Sen. Paul Bailey)

Crime, police and courts

13. Home addresses of federal law enforcement officers

An exemption that allows for confidentiality of residential and contact information of law enforcement officers was expanded to include federal law enforcement agents or officers conducting operations in the state.  The information covered: home telephone and personal cell phone numbers, email addresses and residential street addresses, including city and state. Phone numbers and addressees of immediate family members or household members are also confidential.

The exemption has a repeal date of July 1, 2026 as part of the Senate’s effort to put sunset provisions on new public records exemptions. (Public Chapter 253, HB347 by Rep. Curtis Johnson and SB 475 by Sen. Bill Powers.)

14. Data related to new rape kit tracking system with TBI

A bill that created a new tracking system for DNA analysis of rape kits included a provision that made “records and information contained in the tracking system … confidential and not a public record.”

The adopted law was sponsored by Rep. Bob Freeman, D-Nashville, and Sen. Mike Bell, R-Riceville. The intention was to ensure that victims could get the status of rape kits and receive notification on whether the analysis resulted in a match to a DNA profile in state or federal databases.  The law puts the Tennessee Bureau of Investigation in charge of running the new system.

TCOG raised concerns that the confidentiality of all data, such as data that would show average time it took to process a kit, would prevent public oversight. However, the House sponsor said he thought the TBI would still be able to release such information under his bill. (Public Chapter 362, SB1035 / HB39)

15. Privileged communications related to crisis interventions

A law that makes certain “crisis intervention” communication privileged in court proceedings was expanded to include crisis response services provided prior to a crisis or disaster, in addition to communications during and after a crisis or disaster. The new law also expanded the definition of crisis response services to include “prevention interventions” in addition to consultations, risk assessments and referrals. (Public Chapter 245, HB167 by Rep. Debra Moody, R-Covington, and SB 163 by Sen. Mark Pody, R-Lebanon.)

16. Crash reports involving traffic fatalities

A new law requires the Department of Safety to provide copies of crash reports to members of the General Assembly concerning fatal traffic accidents in their districts without the member having to make repeated requests for reports.

The law is intended to help lawmakers know at which road locations and intersections traffic fatalities occur. The safety department liaison told lawmakers that members could get the reports by requesting them under the public records act, but the law did not cover a standing request. This law law allows a member of the general assembly to have a standing request for up to a year before having to make another request.  It requires the reports be provided within 30 business days after a confirmed traffic death.

An amendment was added that allows the department to withhold a crash report if it is subject to an ongoing investigation. (Public Chapter 225, HB364 by Rep. Lowell Russell, R-Vonore and SB619 by Sen. Mike Bell, R-Riceville.)

17. Records in conservatorship proceedings

Under previous law governing guardianships and conservatorships, if the respondent underwent a physical, psychological or other examination, reports relating to the examination were made part of the court record. A respondent could request a protective order placing under seal the health and financial information, including the reports for such examinations.

The new law removes the requirement that the respondent request an order of protection in regard to the examination reports and instead specifies that such reports are confidential and not open to public inspection. For other health and financial information to be sealed, a request for an order of protection will still have to be made. (Public Chapter 305, HB581 by Rep. John Ragan, R-Oak Ridge and SB1440 by Sen. Raumesh Akbari, D-Memphis).

18. License plate data captured by police surveillance

A new exemption in T.C.A. §10-7-504 makes confidential license plate data captured from automatic license plate reader systems. The plate data is collected by law enforcement through a system of mobile and fixed high-speed cameras to help them track vehicle locations.

The exemption has an automatic repeal date of July 1, 2026, which is part of the Senate’s efforts to put a sunset provision on public records exemptions. (Public Chapter 201, HB809 by Rep. Jason Powell, D-Nashville, and SB699 by Sen. Jon Lundberg, R-Bristol.)

19. Expungement expansion

A new law expands the offenses for which expunction of court records is allowed and makes it less expensive for the person requesting expunction. It is part of a continuing effort by some lawmakers to reform the criminal justice system.

The law, which was sponsored by the House Criminal Justice Committee chairman, expands the crimes eligible for expunction, adding two different Class E felonies, 33 different Class D felonies, 26 different Class C felonies, 22 different Class B felonies, and 18 different Class A felonies. It also alters the time elapsing since completion of sentencing for five years for a misdemeanor or Class E felony, 10 years for a Class D or C felony and 15 years for a Class B or A felony.  This list can be found in T.C.A. § 40-32-101.

The law also authorizes a court clerk to charge a fee of up to $100 for expunction, but no longer requires it. Also, affidavits of complaints (a court record outlining an initial charge) must inform the defendant that public records relating to the case are eligible for destruction if a charge is dismissed, a no true bill is returned by a grand jury, a person is arrested and released without charge, or the court enters a nolle prosequi in the defendant’s case.

The fiscal note on the bill anticipates $141,200 more in revenue each year from fees as petitions for expunction increase. (Public Chapter 539, HB888 by Rep. Michael Curcio, R-Dickson, and SB675 by Sen. Ferrell Haile, R-Gallatin.)

20. Photographic evidence in fatal motor vehicle accidents

A new exemption makes confidential photographic evidence, including video, that depicts a deceased minor victim at the scene of motor vehicle accident. (Public Chapter 304. HB1312 by Rep. Bryan Terry of Murfreesboro and SB1285 by Sen. Dawn White of Murfreesboro.)

Local government records

21. Utility boards competitive proposals

A new law allows utility boards to use competitive sealed proposals instead of bids under certain circumstances. Competitive sealed proposals are not open for public inspection until the intent to award the contract to a particular respondent is announced. (Public Chapter 321, HB388 by Rep. Tandy Darby, R-Greenfield, and SB297 by Richard Briggs, R-Knoxville) 

22. Proposed school textbooks and instructional materials online; curriculums online

Lawmakers enacted two new pieces of legislation that would make educational materials used in public schools more easily available for the public to inspect.

Under new law, school textbooks and instructional materials proposed for adoption by a school board must be made available for public inspection online, which may include via the state textbook depository’s website. (Public Chapter 341, HB1513 by Rep. Mike Cochran, R-Englewood, and SB1034 by Mike Bell, R-Riceville).

Another new law requires each local education agency to publish its curriculum on the school district’s website and to update curriculum changes at the beginning of each semester. (Public Chapter 519, HB210 by Michele Carringer, R-Knoxville, and Sen. Dawn White, R-Murfreesboro)

23. Property alert services, identifying information confidential

Personally identifying information provided by an individual as part of the individual’s use of, or participation in, a government-sponsored or government-supported property alert service or program became confidential under a new law. This affects participants who sign up for an online service that electronically alerts them when a document is filed in the register of deed’s office that references the participant’s name or address. (Public Chapter 333, HB851 by John Crawford, R-Bristol/Kingsport, and Sen. Todd Gardenhire, R-Chattanooga.)

24. Disclosure of conflicts in county purchases

A law (T.C.A. § 5-21-121) barring county officials from having any personal beneficial interest, either directly or indirectly, in the purchase of any supplies, materials, equipment or contractual services for the county was modified.

It was adjusted to make clear that direct interests were barred for all county employees, including employees of the financing and purchasing department. Now, indirect interests are not barred, but a county official who has an indirect interest who is not a member of a governing body must disclose the interest to the county mayor. Those disclosures must be compiled into a list that must be maintained as a public record. Direct interest and indirect interest are also defined in the updated law. (Public Chapter 472, HB616 by Rep. Iris Rudder, R-Winchester and SB 656 by Sen. Janice Bowling, R-Tullahoma.)

25. Retention of personnel records for arrested government employees

New legislation updated a provision in state law about back pay for municipal or county employees who are placed on leave following an arrest. This law allows for back pay when charges are dropped or the employee is found not guilty, but a new provision says back pay is not required if the employee is administratively terminated for a reason other than the arrest.  A new provision requires that public records related to an administrative action must be maintained for the applicable retention period and are not subject to destruction under the expungement statutes. (Public Chapter 470, HB714 by Rep. Chris Hurt, R-Halls, and SB610 by Sen. Ed Jackson of Jackson.)

26. Conflict of interests industrial development board members

A new law requires directors on an industrial development board to complete a conflict of interest statement acknowledging that they understand they cannot vote on matters in which they have a direct interest and must disclose matters in which they have an indirect interest before voting. (Public Chapter 228, HB 831 by Rep. Sabi Kumar, R-Springfield and SB 787 by Rep. Jon Lundberg, R-Bristol.)

Association or nonprofits established for benefit of local government

27. Comptroller audits of associations created for benefit of local government

A bill sponsored by House Speaker Cameron Sexton, R-Cookeville, and by Sen. Todd Gardenhire, R-Chattanooga, rewrote the law allowing associations and nonprofits that were created for the benefit of local government to be exempt from public records law if they had an annual audit.

The biggest change is that the law now requires that the entities be audited by the state comptroller and that some additional information must be reported in the audit, such as payments to contractors or professional advisors. However, payments to lobbyists are not required to be disclosed, nor are payments to attorneys unless the payments come from a government entity. The audits are public record and “must be made available to the press,” according to the new law. (Public Chapter 337, HB1049 / SB240)

Bills of special interest to the press

28. “Stop Guilt by Accusation Act” does not move forward

Sen. Janice Bowling, R-Tullahoma, and Rep. Susan Lynn of Mount Juliet sponsored legislation that would require media outlets to provide “equal coverage in comparable time, place, magnitude, prominence, scale and manner in the same format as the original reporting of a case and controversy” if a final verdict in a court case provides less relief than originally sought by a petitioner and if the accused sends a written notice within 20 days after the verdict or outcome. If the media outlet failed to comply with the demand, the accused could file a lawsuit to seek statutory damages, attorney’s fees and costs, actual damages and other forms of equitable and injunctive relief. The bill also allowed the accused to seek an injunction to force a media outlet to remove a published image.  Sen. Heidi Campbell, D-Nashville, signed onto the legislation.

The bill was assigned to the general subcommittee of the Senate Judiciary Committee. In the House, action was deferred in the Civil Justice Subcommittee to the first calendar of 2022. (SB1297 / HB1219)