Why did Tennessee rank 37th in public access to information?

Tennessee ranked 37th among states in public access to information in the Center for Public Integrity’s 2015 State Integrity report released on Monday.

I was among those who contributed information for the report for Tennessee, so was particularly curious about how other states measured against the public access criteria used in this study to calculate the scores.

Access to government information was one of the 13 categories measured by the report, which assessed systems in place to deter corruption in state government. Some of the other categories were political financing, electoral oversight, ethics enforcement agencies, judicial accountability, lobbying disclosure and state budget processes. Tennessee ranked 15th overall when considering all categories.

If you are willing to plow through the individual state reports, a great deal of reasonably comparable information has been gathered on some important topics related to good government laws.

The public access to information category sought to answer two main questions: “Do citizens have the legal right of access to information?” and “Is the right of access to information effective?” (See: How does your state rank for integrity?)

The criteria measuring those broad questions essentially get at the requirements in the Tennessee public records and open meetings laws.

Tennessee’s lower ranking than other states appears to be driven by two major factors: Weaknesses in the enforcement system of our state’s public records and open meetings laws, and the Legislature’s exemption from the open meetings act, or any enforceable requirement to make all its meetings public.

Enforcement of public records and open meetings laws vary state to state. In some states, like Kentucky, the attorney general can receive complaints from citizens, investigate and determine whether the governmental agency followed the law or not. In others, like Pennsylvania, a quasi-judicial agency can investigate and make a determination, and if the governmental entity still refuses to release a record, a court can levy civil penalties. In Connecticut, the Freedom of Information Commission has power to investigate all alleged violations and impose fees for violating the law.

In Tennessee, as in many states, citizens can file a lawsuit to enforce compliance with the law. While this right to sue is an important feature of our law, it also can be prohibitively expensive and time-consuming for citizens and even news organizations. It’s such a large commitment that few people are willing or even able to file a lawsuit, a reality that is hardly a secret.

The law does allow “reasonable” attorney fees to be awarded to a citizen when a judge finds that a violation of the public records act has occurred. But the law requires the court to first find the governmental entity “knew that such record was public and willfully refused to disclose it.” We’ve seen attorneys fees awarded in public records cases. But it’s no guarantee.

In addition, no provision exists in the Open Meetings Act for recovery of attorneys fees if a governing body violated the law.

Is there any system in Tennessee law that allows a citizen who has been denied access to information (records or meetings) a chance to “appeal” that denial in a reasonable time frame and at no cost? This is one of the questions in the report. Not really. One system in place that is supposed to help is the Office of Open Records Counsel, which was established in 2008. It is allowed to provide information about the law to both citizens and governmental entities and can issue advisory opinions, when asked, that would make clear the law’s requirements. It also can informally mediate disputes, helping citizens gain access to records and helping government follow the law. However, the Open Records Counsel cannot force an agency to turn over public records.  While the office has certainly helped some citizens and journalists gain access to records, it generally does not take an advocacy role.

Also, the Open Records Counsel has even less authority when it comes to potential open meetings violations. The law allows the office to answer questions and provide training about open meetings, but stops short of much else.

In neither instance does the Office of Open Records Counsel have investigatory powers to gather information from a governmental entity to make a determination on whether the law is being violated.

Tennessee State Capitol

Tennessee State Capitol

The other issue related to access to information in Tennessee is the right of access to meetings of the Legislature. This may seem hardly an issue as many people have even enjoyed the ability to observe legislative proceedings online through live-streaming. But, in fact, the Legislature was found to be exempt from the Open Meetings Act in the case Mayhew v. Wilder.

In January, 2001, the Court of Appeals at Nashville ruled that the Legislature is not subject to the Open Meetings Act, and that the courts did not have power to review any decision by the General Assembly to hold closed sessions.

The opinion, written by Judge Ben Cantrell, reasoned that the Open Meetings Act was never intended to apply to the Legislature when it was enacted in 1974, and that even if the Legislature had intended to include itself, it could not because the Constitution prohibited one General Assembly from binding a later one.

The Tennessee Constitution provides that “The doors of each House and of committees of the whole shall be kept open, unless when the business shall be such as ought to be kept secret.” But the appeals court held that, because of the separation of powers provisions, any decision by the Legislature to hold a closed session was non-reviewable by the courts.

The Senate and the House both have adopted rules [Senate Rule 83(2) and House Rule 80(8)] that say all of their meetings are open to the public. But there is no enforceable right by citizens to assure compliance.  And, in fact, in March this year, several news organizations reported that some House committees were meeting in private and excluding news reporters. (See: House committees debate bills in secret ‘pre-meetings’) One statehouse reporter said that after the public exposure, the committees presumably stopped the private pre-meetings. But it’s hard to know for sure if the committees are still complying with their own rules.

Other issues raised by the study’s criteria contributed to Tennessee’s low score, such as the question about an open data law, and provision of data in open-date format. The state does not have an open data law, and some agencies and local governments do not provide data in an open-data format. Many states fell short on this criteria.

What do you think?