Legislative recap: Open government under assault; advocates ‘have a lot of homework to do’

The following is a column by Frank Gibson, executive director of the Tennessee Coalition for Open Government.

The two biggest surprises from the just-ended legislative session were the unprecedented high number of bills affecting open records and meetings, public notices, and an assortment of other First Amendment issues and the failure in the Senate to close gun carry permit files.

The 30 bills represented three times the norm for a single year in a two-year session. We dealt with several of them, but unfortunately more than 20 are likely to return in January. Even though 2010 is an election year, we expect more to be filed.

Some of the deferred legislation is very bad, which means we have a lot of homework to do this summer and fall on such issues as closing police records, changes in public notice laws and possible changes to established libel law.

The high number of bills – many of them broader than they need to be and some that is not needed at all — underscores a serious need to provide more comprehensive scrutiny of this legislation. That’s the only chance we have to slow down the number of exemptions added each year.

Passage of legislation to seal gun permit records seemed pre-ordained after a decade of trying, after guns were permitted in public parks and restaurants that serve alcohol. The obsession of lawmakers to extend gun rights for the 4% of Tennesseans with carry permits made the situation worse.

Of the more than 60 gun bills filed this year, 12 proposed to close permit records, even records of convicted felons whose permits are revoked. Ten bills would have made it a crime to publish anything from a permit file, but we were able to get those provisions rolled back.

On the day before the Senate adjourned for the year, the bill closing the records received 14 votes — three short of the constitutional majority needed to pass. Five Republicans and one Democrat did not vote, prompting the Senate sponsor, Majority Leader Mark Norris, to bemoan published reports that said some supporters had a last-minute change of heart and decided these public records should remain open.

Norris told reporters he was “bothered by the fact that there are apparently political campaigns and candidates that want to use the database for their purposes. The Senators in the chamber tonight were split on what they thought was reasonable, and a number of them obviously took a walk. I presented it as the Senate sponsor and did the best I could.”

Norris did not mention that among the groups that had obtained the database with names and addresses of 220,000 permit holders was the Tennessee Republican Party, but a vote minutes before confirmed his assessment. An amendment that would restrict access to the “entire” database but leave individual records open failed.

That compromise would have prevented the list from being posted on a web site and was the same solution Virginia approved earlier this year.

It would take an intermediate level political science course to analyze what transpired before the vote, but the winning arguments by Senators Joe Haynes, Minority Leader Jim Kyle, and Democrat Caucus Chairman Roy Herron was that the issue had nothing to do with gun rights and everything to do with government transparency. Haynes received TPA’s Open Government Award in February.

Some lawmakers grappled for weeks to find a way to deny access to the press but leave the records open for everyone else. That would have been as constitutionally futile as attempting to punish a newspaper for publishing gun permit information. The state attorney general, citing the 1971 U.S. Supreme Court decision in the Pentagon Papers case, had noted in an opinion last year that any penalty for publication could be successfully challenged as a prior restraint.

Never mentioned in the public debate was the fact that the legislation would have closed information on future permits issued because the database with 220,000 permit holders was already in the public domain.

Bills that passed

Of the seven bills that passed this year, three involved the “sunshine” law. That was a record in itself because we have gone years without anyone tampering with the open meetings law. We were able to mitigate some of the damage in four of the seven bills, and three passed in their original form.

“Sunshine law” changes

Labor negotiations: Under Senate Bill 540, governing bodies will be able to close their meetings to discuss strategy in upcoming negotiations with employee unions. Previously, the law allowed public negotiating committees to meet privately, but the legislation by Sen. Bill Ketron of Murfreesboro extended that to the full legislative body. Face-to-face negotiations remain public under the “sunshine law” at T.C.A. 8-44-201.

Internet chat: Under Senate Bill 832, governing bodies can set up Internet chat rooms for members to communicate outside public meetings, if the body provides notice it is using such technology and makes computer access available to the public. Members cannot use the “chat rooms” to deliberate, and no body is allowed to implement such a system without first getting approval from the Office of Open Records Counsel in the state comptroller’s office. The OORC has to certify that accommodations are being made for the public. The project is an extension of a “pilot” program which operated for a year in Knox County.

Internal audits: Senate Bill 2042. Certain meetings and work product records of special, local audit committees and internal auditors would be closed. The audit committees must meet the requirements of state law and the state comptroller’s office before they can be created. The committees must be independent, which means an audit committee with multiple members of the legislative body does not fall under the definition. The legislation, which we negotiated, requires public notice of plans to close the meeting, lists the reasons meetings can be closed, including to protect the identify of an anonymous whistle-blower, and establishes procedures for closing the meeting. The body must meet first in public, explain that it plans to go into executive session under one of the four listed exemptions, and vote by a simple majority to close the meeting.

Autopsy photos: HB1527 originally proposed to close all information in an autopsy report. It stemmed from a complaint a Knoxville state senator reported getting from a constituent who said photos of a relative’s autopsy had been posted on the Internet. The bill was amended to close only photographs, but the legislation illustrates the problem that many proposed exemptions are much broader than they need to be or should be.

Government building security: Senate Bill 202 originally proposed to close all information dealing with the security of government buildings, including all surveillance audio and videotapes and information about the location of hazardous materials such as controlled substances (drugs), toxic or reactive materials, ingredients for toxic or reactive materials (nuclear), weapons, explosives and hazardous biological materials.”

Under language we negotiated, segments of the surveillance tape “may be made public when they include an act or incident involving public safety or security or possible criminal activity.” The hazardous materials language was removed.

Corrections: If someone asks to be notified when an inmate is released from prison or parole, information that would identify or help locate the citizen making the request would be confidential under SB894.

Public employee files: Information about public employee health savings accounts or private retirement savings and pension accounts will be confidential just as information in their personnel files about bank accounts and other personal information, including home addresses and person telephone numbers.


We were able to get several issues deferred until next year, but unless they can be worked out in the interim, we would expect to see them again next year. They include:

Public notices on government websites: The association that represents county mayors and county execs wants to amend state law to say posting public notices on county-operated web site satisfy statutory publication requirements. If other groups of county and city officials join that effort, we could face a challenge keeping public notices independent and verifiable.

Police records: The City of Murfreesboro wants legislation that would allow law enforcement officers to withhold any and all records by classifying them as part of the investigating officer’s files. Under the proposed bill, the only information that would be clearly public would be traffic accident reports. The major threat is that the Senate sponsor is Sen. Bill Ketron of Murfreesboro, the powerful Republican chairman of the State and Local Government Committee. The House sponsor is House GOP Caucus Chairman Glen Casada of Williamson County.

Public employees: Two separate bills – a sunshine law amendment from Shelby County and a proposed public records exemption from the City of Memphis – would close records and meetings dealing with the conduct of public employees statewide. One would close complaints filed against employees and all materials generated by an investigation. The second would allow local Civil Service Merit Boards to close their meetings to deal with disciplinary or other grievance appeals.

Political advertising: The “Fair Campaign Practices Act” would set up new libel standards for information contained in political campaign ads and allow just 48 hours to publish retractions and corrections. Current law allows 10 days. The Senate sponsor, a Democrat, accepted an amendment removing newspapers and other media from the law by placing liability on the person or group which pays to have the ad or mail piece published or otherwise distributed. The bill received only 12 votes — five short of the constitutional majority needed for passage — and it is unclear whether the sponsors will try against next year.

Frank Gibson is coordinator of the Tennessee Press Association’s Public Affairs Committee and executive director of the Tennessee Coalition for Open Government.


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