The 113th General Assembly made two significant changes this year to the Open Meetings Act — one regarding meeting agendas and the other, public comment periods.
TCOG proposed the agenda bill, which had 20 lawmakers as sponsors by the time it passed.
Other bills sought unsuccessfully to remove required public and legal notices from newspapers and even set up a money-making operation at the Secretary of State’s Office to handle foreclosure notices that would have netted nearly $1 million a year to state coffers.
One significant action was the House passage of a proposed constitutional amendment that would replace victim rights in Article I, Section 35, with expanded rights, including a new right of standing to enforce such rights and a new right to be treated with “fairness for the victim’s safety and dignity.” In other states, the passage of new constitutional rights for victims has resulted in more confidentiality around police records as victims have asserted that releasing police records violate these rights.
An effort to close police records related to suicide investigations was put on hold. Sponsor Senate Majority Leader Jack Johnson asked for hearings on it this summer.
Finally, the session was overshadowed in its final weeks when a shooter on March 27 killed three students and three staff members at The Covenant School in Nashville, leading to huge rallies at the Capitol calling for changes to gun laws. The fervor led to two Democratic House members being expelled for taking over the House floor and leading chants with citizens in the balconies. Justin Jones of Nashville and Justin Pearson of Memphis were reinstated within days by their respective county legislative bodies.
Bills that passed
1 – Agendas for public meetings of local legislative bodies
(Public Chapter 213, SB27 / HB 23 by Sen. Todd Gardenhire, R-Chattanooga, and Rep. Jerome Moon, R-Maryville)
This legislation requires city and county legislative bodies to produce an agenda that is available to the public at least 48 hours before a meeting and that reasonably describes each agenda item. TCOG worked with lawmakers and stakeholders on this law after hearing reports of governing bodies that intentionally left things off the agenda or disguised them to avoid public scrutiny. When citizens had sought legal relief for such secretive behavior, they were met with a Tennessee Court of Appeals ruling that said that nothing in the Open Meetings Act specifically requires governing bodies to have an agenda.
The new agenda law applies to all meetings of local legislative bodies, which include city councils, boards of aldermen and county commissions. TCOG plans to work with lawmakers on potentially adding more governing bodies, such as school boards, planning and zoning commissions and state boards and commissions.
The new law says the agenda must be available in a place accessible to the public and says the governing body’s website qualifies.
A governing body is allowed to add an item to its agenda during the meeting only if members follow their bylaws or properly adopted rules and procedures and comply with all other applicable state laws. However, the governing body is prohibited from circumventing requirements in the statute for the purpose of avoiding public disclosure of business to be considered.
Because this provision is a new section within the Open Meetings Act, it is enforceable under the procedures in the act. It became effective April 25, 2023.
2 – Public comment periods
(Public Chapter 300, SB551 / HB 448 by Sen. Adam Lowe, R-Calhoun, and Rep. Elaine Davis, R-Knoxville.)
For the first time in Tennessee, all governing bodies will be required to have a public comment period to allow comment “on matters that are germane to the items on the agenda.” The legislation allows “reasonable restrictions,” such as on “the length of the period, the number of speakers, and the length of time that each speaker will be allowed to provide comment.”
The governing body also may require a speaker to give advance notice of the desire to offer comments. The notice for the meeting must indicate how a person can give such notice.
This new section in the Open Meetings Act does not apply to meetings in which a governing body is conducting a disciplinary hearing for one of its members or for a person whose profession or activities fall within the governing body’s jurisdiction, such as a state licensure board. It also does not apply to meetings in which there are no actionable items on the agenda. The law takes effect July 1, 2023.
This sets the minimum requirements on public comment periods. Nothing prevents a governing body from allowing comment on items not on the agenda or not requiring sign-up in advance.
3 – Confidentiality of school security information
(Public Chapter 367, SB 274 / HB 322 by Sen. Jack Johnson, R-Franklin, and Rep. William Lamberth, R-Portland)
A new law that amended the SAVE (Schools Against Violence in Education) Act requires public schools and public charter schools to give more information regarding school security to local law enforcement and to the state. It also allows new state reviews of school security vulnerabilities. Previously, those schools had to provide only school safety and building plans to local law enforcement.
An existing public records exemption passed in 2014 covered the plans required under the earlier law. The new provision adds: “All school security reports, memoranda, plans, notes, threats, and procedures, including drafts that are incorporated in reports created or received by the department of safety” encompassing a broader amount of information schools are required to keep and share.
The bill had made it through House committees before the Covenant School shooting. After the shooting, it was further amended to require some accredited private schools and church-related schools to report building-level safety plans to law enforcement though it did not make them subject to all the reporting requirements. It was also further amended to require all public schools, including charters schools, built or remodeled after July 1 to have door-locking mechanisms, bullet-resistant glass on exterior doors and low-level windows, camera systems and entry vestibules that have two doors.
4 – Marsy’s Law, access to police records
(HJR0094 by Rep. Patsy Hazlewood, R-Signal Mountain)
The House took the first step toward a constitutional amendment that would replace the current victim’s bill of rights in Article 1, Section 35, with a new version that gives a victim and a victim’s family standing to enforce their rights.
The proposal, known as Marsy’s Law, failed in 2021 and was brought back again with changes to appease opposition from law enforcement agencies and district attorneys over cost and potential interference with prosecutions, such as with plea bargains.
The new House version that passed allows a victim to assert rights “not as a party, but in the manner provided by the General Assembly protecting the victim’s right to standing.” The current constitution doesn’t specify a right of standing, but gives the General Assembly “authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section.”
A national organization, Marsy’s Law for All, is pushing for constitutional changes in all states, including in states like Tennessee that already have some victim rights in their constitutions. The goal is to give victims due process rights equal to defendants and a right of standing to assert their rights in court.
Problems have occurred in some states where a version of Marsy’s Law has been implemented, including interpretations of rights that have limited access to public records of police. One of the rights to which victims are entitled in Tennessee’s current constitution is “the right to be free from intimidation, harassment and abuse throughout the criminal justice system.” This right is included in a proposed new version along with a new general right of victims to “be treated with fairness for the victim’s safety and dignity.”
Current language in the constitution includes the “right to be heard, when relevant, at all critical stages of the criminal justice process as defined by the General Assembly.” The proposed constitutional amendment would replace that with: “The right upon request to be heard in any proceeding involving release, plea, sentencing, disposition, and parole, as well as any public proceeding when relevant during which a right of the victim is implicated.”
The proposal also states: “The General Assembly has the authority to enact substantive and procedural laws to further define, implement, preserve, and protect the rights guaranteed to victims by this section. This section must be interpreted to preserve and protect the rights of all persons to due process.”
A constitutional amendment must be passed by a majority of both houses of the General Assembly, then by two-thirds of both houses in the next General Assembly, then by “a majority of all the citizens of the state voting for governor” in the next election in which a governor is chosen.
5 – Reports of paddlecraft operators submitted to TWRA
(Public Chapter 235, SB639 / HB407 by Sen. Frank Nicely, R-Strawberry Plains, and Rep. Jay Reedy, R-Erin.)
The Tennessee Wildlife Resources Agency is authorized to establish rules, regulations and permits for commercial operators that rent non-motorized vessels on public waters in Tennessee. As such, those outfitters are required to submit reports to the TWRA.
A new exemption in the public records law would make those reports confidential, including information on the number and type of vessels leased each day and daily ridership data, unless the outfitter expressly authorizes release of the information. The exemption allows the wildlife resources agency or the fish and wildlife commission to use the reports in producing aggregated data that is open to the public.
6 – Sexual assault response team communications
(Public Chapter 212, HB 415 / SB 22 / HB 415 by Sen. Becky Massey, R-Knoxville, and Rep. Elaine Davis, R-Knoxville)
As part of the new Sexual Assault Response Team Act, communications occurring in a meeting of an “adult sexual assault response team” are confidential and not subject to the public records law. The law requires each local law enforcement agency to begin collaborating with available “community resources” to identify gaps in service and improve response systems for sexual assault victims. The meetings of these new teams may be in person or by virtual means.
7 – Child death information
Public Chapter 292, SB 332 / HB 91 by Sen. Adam Lowe, R-Calhoun, and Rep. Lowe Russell, R-Vonore)
A new provision in the law allows the Department of Children’s Services to disclose information about a case to the public if all parties involved in the case, including the child, are deceased and all identifying personal information of the parties is redacted. Identifying personal information does not include a party’s name but does include date of birth and address.
The provision was added to a section of the law that allows DCS to keep confidential information related to child deaths before closure of an investigation except for the child’s age, child’s gender and whether the department has had history with the child. After the case is closed, current law already requires the release of the final disposition of the case, whether the case meets the criteria for a child death review and the “full case file” which may be redacted.
While it is not entirely clear what new information will be available or when it would be available under the law, the new statute appears to give the Department of Children’s Service additional latitude in releasing the names of deceased children and other information in some cases, such as when someone kills a child then commits suicide.
8 – Vehicle accidents in state parks
(Public Chapter 26, SB 262 / HB 81 by Sen. Jack Johnson, R-Franklin, and Rep. William Lamberth, R-Portland)
A law passed in 2017 made confidential any records relating to a guest’s use of a state park, including name, address, phone number and reservation information. A new law this year amends that subdivision to allow access to a report of a motor vehicle accident within state parks to legal representatives of people involved in the accident and to insurance companies.
9 – Prosecution for destroying, tampering with government records
(Public Chapter 22, SB 147 / HB 128 by Sen. John Stevens, R-Huntingdon and Rep. Johnny Garrett, R-Goodlettsville)
This new law extends the statute of limitation to six years for prosecuting someone for offenses of destruction and tampering with governmental records and for official misconduct. Previously, a felony offense of record tampering or destruction and of official misconduct had to be prosecuted within two years, and a misdemeanor offense of official misconduct had to be prosecuted within 12 months.
10 – Responses to public records request
(Public Chapter 157, SB86 / HB 734 by Sen. Paige Walley, R-Savannah, and Rep. Tim Rudd, R-Murfreesboro)
Delays are a common complaint by people who make requests for public records. A new law doesn’t speed things up but says that no requester is entitled to “special or more expeditious access to records under this part due to the requestor’s occupation or association with a specific profession.” It’s unclear how records custodians will view or use this statute, or even whether they are giving some people more expeditious access than others based on the person’s profession.
11 – Per diems for county records commissions
(Public Chapter 230, SB 686 / HB 99 by Sen. Shane Reeves, R-Murfreesboro, and Rep. Robert Stevens, R-Smyrna)
This new law raises the per diem rate from $25 to up to $150 for meetings for members of a county records commission who do not receive a fixed annual salary from the state or the county. A county records commission must be composed of at least six members and must include a member of the county legislative body, a judge and a genealogist. County clerks, county historians and county archivists are ex-officio members. County public records commissions were created by statute to provide for the orderly disposition of records. For example, they can authorize destruction of records and determine which records are required to be retained in original form or can be preserved through photocopying.
12 – Tennessee Higher Education Freedom of Expression and Transparency Act
(Public Chapter 268, SB 817 / HB 1376 by Sen. Joey Hensley, R-Hohenwald, and Rep. John Ragan, R-Oak Ridge)
This statute adds to the “divisive concepts in schools” law passed last year. Among other things, it requires state colleges to file a report annually with the state Comptroller’s Office of violations and corrective actions taken related to a student or employee being penalized or discriminated against for failing to support or assent to “divisive concepts” as defined in last year’s law. The report must be redacted to comply with FERPA and other exemptions or privacy laws.
Bills that failed, were taken off notice or were moved to next year
1 – Police records related to suicide
(SB215 / HB 811 by Sen. Jack Johnson, R-Franklin, and Rep. Jake McCalmon, R-Franklin)
Sen. Jack Johnson asked the Senate State and Local Committee for a summer study on police records related to suicides after country music star Naomi Judd, who lives in Johnson’s district, shot herself. The family sought to keep records from the police investigation confidential, including Judd’s suicide note, and filed a lawsuit against the Williamson County Sheriff’s Office to try to prevent the sheriff from releasing its records.
In asking for a summer study, Johnson filed an amendment that he said outlined his desired starting point for discussion. It provided that all law enforcement investigative reports, 911 calls, photos and medical records related to a suicide would be confidential. A person seeking access to those records would have to seek an order from a court and the court would consider whether such release “is necessary for the public evaluation of governmental performance; the seriousness of the intrusion into the privacy of the family members of the deceased person; whether the release will cause the family of the deceased person to experience severe mental pain, anguish, and emotional distress; and whether such release is the least intrusive means possible.” The proposed amendment allows access to the files by a spouse, parent, sibling or child of the person who committed suicide.
2 – Electronic meetings of county and city legislative bodies
(SB294 / HB389 by Sen. Richard Briggs, R-Knoxville, and Rep. Dave Wright, R-Knox County)
This bill was a revival of an idea that failed in 2021 and came from members on the Knox County Commission. The bill would have allowed members of county and municipal legislative bodies to attend a meeting electronically if the member was “dealing with a family or medical emergency as determined by” the legislative body, had been called into military service, or was “unable to attend in person due to inclement weather.”
The bill allowed a member to attend electronically no more than two times a year and required that meetings allowing such electronic participation be recorded and the recordings put on the commission’s website. It also required that no more than 20% of the governing body could attend any given meeting electronically, not to exceed three members.
The bill failed in the House Local Government Committee on a voice vote and was not heard in the Senate State and Local Committee, where it had been assigned.
3 – Public notice on website
(SB550 / HB449 by Sen. Adam Lowe, R-Calhoun, and Rep. Elaine Davis, R-Knoxville)
A bill that would have allowed governing bodies to put public notice of meetings on their websites failed in the House State Government Committee and was not heard on the Senate side.
4 – Public notice of foreclosure sales
(HB1355 / SB1324 by Rep. Andrew Farmer, R-Sevierville, and Sen. Paul Bailey, R-Sparta)
A bill that would have allowed state government to take over the $1 million foreclosure ad business by removing notices from local newspapers was taken off notice. The banking association had pushed the bill. It would have allowed the Secretary of State to create a new website and charge banks and mortgage companies $200 for each notice. Within a few years, the Secretary of State was estimated to earn about $977,800 on the business. The bill also would have removed requirements that banks post notices of upcoming sales in physical locations in the county where the property is located.
5 – Moving all public notices from newspapers to county websites
(SB525 / HB 300 by Sen. Richard Briggs, R-Knoxville, and Rep. Jason Zachary, R-Knoxville)
A bill that allowed public notices required by statute to be published by a county in a newspaper of general circulation to be published on the county’s website instead was deferred in the House to 2024. Rep. Zachary filed an amendment to the bill that limited this authorization to only Knox County. He briefly appeared before the House Public Service Subcommittee to announce that he was asking the bill be deferred to the first calendar of the committee in 2024. The bill was not presented on the Senate side.
6 – Confidentiality about lethal injection drugs
(SB 977 / HB 870 by Sen. Mark Pody, R-Lebanon, and Rep. Justin Lafferty, R-Knoxville)
A bill that sought to eliminate a law that allows the identity of the company that provides the state with lethal injection drugs to be secret was deferred in the Senate to 2024 and taken off notice in the House. The bill was aimed at allowing the public to know the names of the pharmacy compounders who make the drugs for executions. It was filed after a governor’s report showed the state’s compounder was not following safety protocols.
The exemption allowing the secrecy was passed in 2015 as the state was struggling to find pharmacies who would provide it with lethal injection drugs.
7 – Bulk purchases of public records
(SB 1431 / HB 1322 by Sen. Kerry Roberts, R-Springfield, and Rep. Ed Butler, R-Rickman)
A bill that would have required the Office of Open Records Counsel, in coordination with the Department of Safety and Department of Revenue, to develop and maintain a system to track bulk purchases of public records containing personal information from state motor vehicle records was taken off notice in the House after being put behind the budget of the finance committee.
The fiscal note of the bill showed initial costs of $334,100, which included two developers to build a system to capture data, and recurring costs of about $35,000 a year after that. The bill also required the Office of Open Records Counsel to post the information on its website monthly.
8 – Juvenile Justice Review Commission
(SB609 / HB1103 by Sen. Ed Jackson, R-Jackson, and Rep. Mary Littleton, R-Dickson)
A bill creating a new Juvenile Justice Review Commission to review juvenile cases and critical incidents and make recommendations to the General Assembly was taken off notice in the House finance committee after being placed behind the budget. Of interest to open government advocates was a provision that made the commission’s “investigatory meetings” exempt from the Open Meetings Act and required minutes of such meetings to be sealed. “Investigatory meetings” were defined as those in which information made confidential by state or federal law was being discussed.
The bill required commission members and those attending the meetings to sign statements affirming an understanding of and adherence to the confidentiality requirements, including an understanding of possible civil or criminal consequences of violating confidentiality. The commission would have been required to conduct meetings open to the public “periodically” in a manner that did not reveal confidential information.
The commission’s duties would have included reviewing critical incidents, such as escapes by juveniles from youth detention centers, acts of aggression by juveniles while in the custody of the Department of Children’s Services, self-harm, allegations of abuse by department staff against a delinquent juvenile and other types of incidents.
The fiscal note on the bill was $219,100 for the first year and $214,100 for subsequent years.