(Posted May 6, 2022)

The 112th General Assembly opened the door for more transparent government this year with bills dealing with public meetings and public records, and, importantly, turned back efforts that would have reduced access.

A bill that would have upended the public records law by taking away the option for citizens to inspect public records for free was never put on notice by its sponsors to be heard.

And a late stealth caption bill that could have reduced timely citizen access to police body camera and dash cam footage — even to citizens appearing in the video — was likewise dropped.

On the proactive side, the General Assembly increased requirements on state boards and commissions when they conduct meetings with members attending via audio or video conference. They will now have to record such meetings and put the recordings on their websites and provide a way for citizens to view or hear such meetings remotely and in real-time as well.

Lawmakers also fixed a gap in the law by requiring jails and prisons to keep a public record of anyone who dies while in their custody and the cause of death.

And a notice requirement for special-called county commission meetings was updated to allow the county legislative bodies, in certain circumstances, to post notice of the meetings in a location where the public can expect to see it and on their website, if they have a website, as long as the notice is published five days before the meeting. The statute incorporates what the courts have required for adequate public notice for special called meetings.

Finally, a bill championed by Lt. Gov. Randy McNally and House Speaker Cameron Sexton updated campaign finance disclosure and ethics laws to provide more public information — and more timely information in some instances — on spending to influence elections.

Here is a more detailed discussion of open government bills tracked by TCOG and their outcomes.

Bills that passed

1. Electronic meetings of state boards and commissions

(Public Chapter 856, SB 2889 / HB 2864 by Sen. Todd Gardenhire, R-Chattanooga, and Rep. Tim Rudd, R-Murfreesboro)

This legislation marks a turning point for state board and commission meetings that are held using electronic means by making such meetings more easily accessible to members of the public, including after a meeting through recordings posted on websites.

Since 1990, Section 108 of the Open Meetings Act has allowed members of state boards and commissions to attend meetings via conference call or video conference and the entire board to meet by audio or video conference under certain circumstances. The law was expanded in recent years to also cover emergency communication district boards.

Lawmakers this year updated the law to require a way for members of the public to also access such meetings in real-time and remotely through electronic means and to provide comments electronically when public comment is normally allowed.

The new law also requires that governing bodies record all meetings that are held under Section 108 provisions. The recording or a link to the recording must be posted within three business days to a website that contains information about the governing body’s meetings and maintained for three years.

The bill defines electronic means of communication as “communication by video conference or audio conference and may include the use of an internet-based platform, but does not include email.”

The change will bring more transparency to the work of dozens of state boards and commissions that use electronic means to conduct meetings. For example, the bill applies to state university boards, environmental oversight boards, and such closely watched boards as the state election commission and state historical commission.

It applies to all state boards, including the new board that oversees the Megasite Authority of West Tennessee. Some state boards already provide the type of public access required in the bill but many do not.

Sen. Gardenhire noted that the changes would not expand or diminish the ability of governing bodies to use video or audio conferences for meetings. “It simply creates better public access for those governing bodies who are already authorized to do so,” he said.

Tennessee Coalition for Open Government advocated for this legislation.

2. Deaths in jails and prisons

(Public Chapter 850, SB 2802 / HB 2613 by Sen. Kerry Roberts, R-Springfield, and Rep. Jeremy Faison, R-Cosby)

This new law requires that local jails and state prisons maintain a public record of the deaths of individuals in their custody. The records must be open for public inspection.

The jail or prison record must include:

The identity and age of the deceased individual;
The time and date of the death; and
The cause of death as determined by the county or state medical examiner pursuant to § 38-7-109

Sen. Roberts, in presenting the bill on the Senate floor, said that the bill codifies what should already be best practice in jails and prisons.

Sen. Jeff Yarbro, R-Nashville, thanked Roberts for the bill but asked why the amended bill had deleted language from the original bill that also required the jails and prison to provide the “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.”

Roberts said that the sheriff’s association had asked to remove that part of the bill because of the complication that some of those facts may still have to be adjudicated, but that perhaps the issue could be revisited later.

Signing on as co-sponsors of the legislation were Sen. Ken Yager, R-Kingston; Rep. G.A. Hardaway, D-Memphis; Rep. John Crawford, R-Bristol and Kingsport; and Rep. Larry Miller, D-Memphis.

Currently, jails and prisons are required to report deaths in custody to the Tennessee Bureau of Investigation, but the new legislation would assure that information is accessible to citizens locally from the jail or prison where a person died. In addition to Tennessee Coalition for Open Government, Just City of Memphis advocated on behalf of the bill.

3. Campaign finance and conflicts of interest

(SB 1005 / HB 1201 by Lt. Gov. Randy McNally, R-Oak Ridge, and House Speaker Cameron Sexton, R-Crossville)

The Tennessee General Assembly strengthened rules on campaign finance and ethics reporting in legislation that the House speaker described as bringing money flows “from the dark into the light.”

The legislation will increase the information available to the public on the state’s website and tighten down loopholes used to undermine accountability.

Lt. Gov. Randy McNally and House Speaker Cameron Sexton — the top leaders of each chamber — championed the legislation, fighting off protests from some nonprofit groups that, for the first time in Tennessee, will have to report spending on communications above an aggregate of $5,000 “that expressly contain the name or visually depict the likeness of a state candidate in a primary or general election” 60 days prior to the election.

This measure applies to nonprofits organized under the IRS Tax Code 501(c)(4), (5) and (6). These types of organizations, unlike nonprofits organized as 501(c)(3)s, are allowed by federal law to engage in political campaigns on behalf or in opposition to candidates or referendums. But they’ve not had to report spending related to political campaigns in the same way as political action committees. Some have referred to this spending as “dark money.”

“Openness and transparency in the political process are prerequisites to freedom. For too long, shadowy political operatives working for special interests have been allowed to exploit loopholes in our system and operate in darkness,” McNally said about the bill.

“If you are attempting to influence the outcome of an election Tennessee, the voters deserve to know who you are and what you are doing. Now they will.”

The bill also requires more detail on disclosures, increases conflicts of interest reporting and clarifies meeting rules of the two main governing bodies that enforce the laws, the Tennessee Registry of Election Finance and the Tennessee Ethics Commission.

For example, the bill closes a gap in current law to require timely reporting of campaign expenditures in the 10 days before the election. Currently, only contributions over a certain threshold are required to be reported during those 10 days.

The bill also requires:

More itemization of campaign finance contributions and expenditures,
Additional disclosures when paying state employees and officials for campaign services,
New disclosures of conflicts of interest for lower court judges, and
More disclosure of political action committees controlled by members of the General Assembly.

The bill strengthens rules around accountability, including document retention requirements, new penalties for false information on disclosure forms and additional identification of people involved in a PAC.

For more detail, see a TCOG analysis online.

4. Adding clarity about responses to public records requests

(Public Chapter 721, SB 1682 / HB 1854 by Sen. Todd Gardenhire, R-Chattanooga, and Rep. Sam Whitson, R-Franklin)

Tweaks to the main section of the public records law were enacted to add clarity to passages that sometimes cause confusion between requesters and the government.

One change adds the words “into a new record” to a passage to say that a governmental entity is not required “to sort through files to compile information into a new record…” This clarifies that a governmental entity is not required to sort through files to collect information to put into a new record to satisfy a public records request.

Occasionally, a governmental entity has asserted that the statute meant they did not have to “sort through files” to locate public records responsive to the request.

The legislation also replaced the word “specific” with “responsive” so that the law now reads: “A request for inspection or copying of a public record must be sufficiently detailed to enable the governmental entity to identify responsive records for inspection and copying.” The change was made so that it was clear that a citizen did not necessarily have to state the exact or “specific” title of the record although they still must provide enough information so that the governmental entity can identify the records that would be responsive.

Finally, state law already gives government entities the option of requiring a requester to provide identification. The purpose of the identification is to ensure the requester is a Tennessee resident, as Tennessee’s public records law does not mandate government entities fulfill requests from people who are not residents. Most people have government-issued photo identification with their address, such as a driver’s license.

Under the previous law, if the person did not have photo identification with their address, the government entity could require other forms of identification “acceptable to the governmental entity.” The change added clarity to the purpose of the other identification by replacing “acceptable to the governmental entity” with “evidencing the person’s residency in the state.”

5. Special called meetings of county legislative bodies

(Public Chapter 830, HB1677 / SB 1774 by Sen. Joey Hensley, R-Hohenwald, and Rep. Scott Cepicky, Culleoka)

Rep. Scott Cepicky sponsored the legislation at the request of the Maury County Commission that complained about a statute requiring notice of special-called meetings to appear in a newspaper five days before the meeting. The county commission chair, Don Morrow, said the requirement meant that sometimes the advertisement had to be purchased as many as 10 days in advance, causing the county problems when it wanted to hold a special meeting faster.

The bill changed the law to allow county legislative bodies that can’t meet the deadlines for newspaper publication to instead:

Post the notice in a location where a member of the community can become aware of such notice and on the county’s website if the county has a website;
Include in the contents of the notice a reasonable description of the purpose of the meeting or action to be taken; and
Post 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, but at least five (5) days before the county legislative body convenes for the special meeting.

6. Extension of exemption for body camera footage

(Public Chapter 916, HB 1957 / SB 2061 by Sen. Jack Johnson, R-Franklin, and Rep. John Gillespie, R-Memphis)

An exemption for certain types of law enforcement body camera footage was extended another five years to 2027 and expanded slightly. Video that is confidential includes video of:

(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, which covers health-care related facilities;

(D) Minors, when taken within a K-12 school, at a child care agency or program, or in a preschool or nursery.

7. Photographic evidence depicting the remains of a deceased minor

(SB 2725 / HB 2308 by Sen. Dawn White, R-Murfreesboro, and Rep. David Hawk, R-Greeneville)

This legislation expanded a confidentiality exemption that applied to photographic evidence of deceased minor victim at the scene of an accident to include photographic evidence of all deceased victims at the scene of an accident, regardless of age. It also expanded the exemption to cover any photographic evidence of a deceased minor.

Photographic evidence can mean any photo, still or moving, or any videotape that is in the possession of the government.

8. New report on emergency purchases

(SB 1977 / HB 2676 by Sen. Todd Gardenhire, R-Chattanooga, and Rep. Jason Zachary, R-Knoxville)

Lawmakers through this bill now require that emergency purchases by state agencies that are approved by the state’s central procurement office be reported to the House and Senate fiscal review committee within 30 days.

The report must include several details, such as the circumstances that require the emergency purchase and a complete list of goods and services procured, including prices. The new statute allows the chair and vice chair to hold hearings on these emergency purchases.

9. Access to school testing materials

(HB 2312 / SB 2299 by Sen. Mark Pody, R-Lebanon, and Rep. Bruce Griffey, R-Paris)

A new section was added to the title affecting K-12 schools requiring a local education agency or the state Department of Education to provide any testing materials or proposed testing materials to members of the general assembly upon the member’s request to inspect or review the materials.

The law allows the state board of education to protect the integrity and confidentiality of these materials through rules. The access is only for lawmakers.

10. Pilot program for information on criminal proceedings

(SB 2377 / HB 2367 by Sen. Ferrell Haile, R-Gallatin, and Rep. Michael Curcio, R-Dickson)

A pilot program was funded for the Tennessee Sheriff’s Association to establish a criminal proceedings notification system as an extension of the existing victim notification system to increase transparency and efficiency by “providing timely information about each stage of the criminal process to interested parties.”

The information in the system must be available 24 hours per day over the phone, through the internet or by email. A person interested may register with the sheriff’s association to be automatically notified. The pilot program would begin July 1, 2022 and end June 30, 2025.

11. Competitive bid proposals

(Public Chapter 779, SB 2106 / HB 2551 by Sen. Ken Yager, R-Kingston, and Rep. Eddie Mannis, R-Knoxville)

This legislation allows competitive sealed proposals to be opened in a manner that avoids disclosure of contents to competing respondents during the negotiation. The proposals and all related materials must be open for public inspection after the intent to award the contract to a particular respondent is announced.

12. New report details required on Temporary Assistance to Needy Families (TANF) funds

(Public Chapter 693, SB 132 / HB 136 by Sen. Rusty Crowe, R-Johnson City and Rep. David Hawk, R-Greeneville)

Requires the state commissioner of human services to include in the annual block grant report submitted to multiple general assembly committees and others new information detailing the department’s access to and use of federal TANF funds.

13. Proprietary exemption for commercial operators in state parks.

(Public Chapter 708, SB 2117 / HB 2125 by Sen. Mike Bell, R-Riceville, and Rep Dan Howell, R-Cleveland)

All records containing proprietary information provided to the state department of environment and conservation by a commercial service provider who conducts commercial operations in a state park are confidential under this new legislation.

Proprietary information is defined to mean commercial or financial information used by the business that gives another person an advantage or opportunity to obtain an advantage over competitors.

The exemption lasts through July 1, 2027, when it would be repealed.

14. Electronic administrative proceedings

(Public Chapter 833, SB 1936 / HB1997 by Sen. Ed Jackson, R-Jackson, and Rep. Mark Cochran, R-Englewood.)

This law affects hearings under the Uniform Administrative Procedures Act. It allows an administrative judge or hearing officer to conduct all or part of a hearing telephonically, electronically or by audio-visual means if each participant has an opportunity to hear, and if feasible, to see the entire proceeding. The public observation of the hearing is satisfied by allowing members of the public an opportunity, at reasonable times, to hear or view a recording and to inspect a transcript.

Bills that failed

1. Effort to get rid of free inspection

(SB 2534 / HB 2635 by Sen. Ferrell Haile, R-Gallatin, and Rep. Dave Wright, R-Knoxville)

The sponsors who were running this bill for the police chiefs association never put the bill on notice in their respective committees. The bill would have gotten rid of the ability of citizens to inspect public records for free, an old idea that was soundly rejected in 2015.

2. Expansive body cam and dash cam footage exemption

(SB 1999 / HB 2586 by Sen. Mike Bell, R-Riceville, and Rep. Michael Curcio, R-Dickson)

A caption bill that was used for a bill to rework access to body cam and dash cam footage was dropped by its Senate and House sponsors without being heard in committee.

TCOG obtained a copy of the 10-page amendment of the bill just days before the bill was scheduled to be heard and explained how the bill would lock down citizen access and allow law enforcement to delete most footage after 30 days.

3. Making requests on behalf of others

(SB 661 / HB 1402 by Sen. Kerry Roberts, R-Springfield, and Rep. Michael Curcio, R-Dickson)

A bill failed to pass that would have required requesters to “certify in writing” that they are not making a public records request on behalf of or at the request of another entity, and would have disallowed named parties in litigation with or against a government entity from making a public records request. Even though a proposed amendment in a Senate committee removed the language that would have stopped people from making requests on behalf of others, the Senate committee still objected to giving up rights to make a public records request when you were in litigation with the government entity.

Curcio had said that the Dickson city attorney had asked for the bill.

4. Public comment at school board meetings

(SB 1830 / HB 1880 by Sen. Joey Hensley, R-Hohenwald, and Rep. Tim Rudd, R-Murfreesboro)

A bill that would have required school boards to provide members of the public an opportunity to provide public comment — at least 10 citizens for at least three minutes per person — failed in a House committee

5. Lottery winner names

(SB 2146 / HB 2616 by Sen. Paige Walley, R-Bolivar, and Rep. John Holsclaw, R-Elizabethton)

A bill that would have made confidential the names of state lottery winners and prevented the lottery from disclosing all winners unless authorized by the winner died after the Senate and House couldn’t agree on differences. The Senate had amended the bill to allow the lottery to disclose winners when the lottery prize exceeded $1 million.

6. RegionsSmart Development District in Memphis

(SB 1915 / HB 1989 by Sen. Paige Walley, R-Bolivar, and Rep. Kevin Vaughn, R-Collierville)

Legislation that would have created a three-state interstate compact agency with eminent domain powers for economic development was taken off notice in the House and failed to move in the Senate.

Of interest to TCOG, the new agency would not be subject to Tennessee’s public records or open meetings laws.

The legislation would have allowed Tennessee to enter into a compact with Arkansas and Mississippi to create the RegionSmart Development District and the RegionSmart Development Agency of the Memphis Region. The purpose of the organization would largely be economic development. Its 15-member board would include five Tennessee members appointed by the city of Memphis, Shelby County, Fayette County and Tipton County.