Tennessee Open Records Act

Tennessee Bureau of Investigation/Facebook

Should the Tennessee Bureau of Investigation be able to keep its case files forever secret from the public?

Should Google be able to keep secret how much money it will get from a local government?

Those were but two questions reviewed Thursday morning during the second meeting of a group of state lawmakers trying to get their hands around the 563 current exemptions to Tennessee’s Open Record Act.

Jack McElroy, executive editor of the Knoxville News-Sentinel, told the group public records are vital to a newspaper’s watchdog function. Knoxville News-Sentinel

Jack McElroy

“Records are critical for us to fulfill our responsibilities set out in the First Amendment, for being the eyes and the ears of the citizens, and holding government accountable,” said McElroy, who is also co-chairman of the Tennessee Press Association’s (TPA) government affairs committee.

McElroy pointed to two real-world examples of how open records exemptions affect public knowledge.

In 2015, Google scored a 23-year financial agreement with the city of Clarksville’s Industrial Development Board. They also scored, through a three-page nondisclosure agreement, the rights to hide just how much the deal would cost taxpayers and the number of employees the project would create.

Google got the dodge by calling the information “trade secret,” said McElroy. Senator Todd Gardenhire (R-Chattanooga) asked the editor if he could define ”trade secrets.”
Tennessee General Assembly

Senator Todd Gardenhire

“No, sir,” McElroy said, drawing laughter from the crowd. “It took Google…pages to define it. I can’t do it. But I’ll leave this document with you.”

Gardenhire retorted, “I guess it’s like the definition of pornography. You’ll know it when you see it, right?”

McElroy also took on the TBI’s “forever exemption.” He said it was one of the two original exemptions to the open records law when it when it was first passed in 1957.
[pullquote-1] Senator Mike Bell (R-Riceville) asked if anyone in the room knew why TBI got such an exemption and said, “it seems like a strange exception to me.” McElroy said he wasn’t really sure why but he had been told that perhaps it was because TBI investigates government corruption.

McElroy said that it was only because a judge ordered a small piece of a TBI investigation to be opened that the public found out that a Criminal Court judge in Knoxville had been high on opioids on the bench and had bought drugs from the people in his court. Tennessee General Assembly

Senator Mike Bell

The judge pled guilty to criminal misconduct and was placed on diversion. But Knoxville News-Sentinel repeaters could not find out more, in order to be able to hold other public officials accountable for what McElroy described as a years-long situation.

“We would have liked to see how the TBI talked to and how far into the question of, ‘Who knew what, when?’ but it was unavailable because of the forever exception,” McElroy said. “It is something that Tennesseans and those in Knox County will never know, in this particular case.”

No TBI official was present during Thursday’s hearing. Though, committee members were told that someone from the agency would be at the next hearing.

Janet Kleinfelter, senior counsel with the Tennessee Attorney General’s Office, urged the group to be cautious when examining and especially in ending some of the exceptions.

“We would strongly suggest before you begin and during this process that you talk with the agency, the commissioner, the department, the board, and the local government affected by the exception,” Kleinfelter said. “The exceptions enacted since I’ve been doing this — 20 plus years — come, usually, with a very good reason adopted by legislature.”

On Wednesday, McElroy published an opinion piece on the topic for the News-Sentinel.

There were only two exceptions to the Tennessee Public Records Act when it was enacted in 1957; now there are 538, and a panel of lawmakers began reviewing them last week.

Sometimes called the Sunshine Law, the open records act “helps ensure government accountability and transparency by granting Tennessee citizens the right to access public records,” according to a recent report by the Tennessee Comptroller of the Treasury.

State lawmakers requested the report last year, and formed the the Open Records Ad Hoc Committee to review the exceptions. That committee got to work last week with a summer study session.

The committee learned that only 89 exceptions to the state open records law existed when the Legislative Committee on Open Records checked in 1988. The comptroller’s Office of Open Records Counsel began looking again in November and found 538 statutory exceptions, with only two exceptions scheduled to sunset, or end, soon.
[pullquote-1] You can check them all here in the report. But, get ready, because it’s a scroll-fest — outlining exemptions from abortion and alcohol abuse to veterinarians and victim-offender mediation centers.

“Some of the exemptions are broad and vague and have led to disputes,” said Deborah Fisher, executive director of the nonprofit Tennessee Coalition for Open Government (TCOG), in a letter to lawmakers last week. “Some were passed with scant information provided lawmakers, and with little notice to the public. Others are more straightforward and the need for the exemption is obvious.”

During last week’s hearing, Fisher gave a few examples of Tennessee’s exceptions.

One example shields the investment strategy of the University of Tennessee (UT). The intent was to protect some proprietary information of the school’s investment firm. But this year, Fisher’s report said, the exemption was used to shield how much UT paid to its investment firms.

Another exemption protects tax information. It was meant to shield a person or company’s tax return data. But in recent years, Fisher said, it’s been used to keep secret the amount of tax credits that are promised to companies in economic development deals.

TCOG suggested lawmakers give anyone affected by an exemption the right to be heard, include the price tag for adding an exemption to a bill’s fiscal note, create a sunset review process for all existing exemptions, and several other recommendations. See all of TCOG’s recommendations here.

The Ad Hoc Committee on Open Records will meet again on Thursday, September 13th.