Judge rules Legislature exempt from Public Records Law
Ruling comes after query into claim of sexual misconduct

By TOM HUMPHREY
Knoxville News Sentinel
tomhumphrey3@aol.com

12/31/2004

            NASHVILLE -- A Nashville judge has ruled that Tennessee's Public Records Law does not apply to the Legislature, specifically allowing allegations of sexual misconduct by lawmakers and their staff to remain confidential.

            The November ruling by Davidson County Chancellor Claudia Bonnyman is criticized by media advocates for open government but hailed by Connie Frederick, director of the Legislature's Office of Administration.

            It comes two years after the state Court of Appeals ruled that the Legislature is exempt from another of the state's major open government laws -- the so-called Sunshine Law that requires government bodies to meet in public.

            Both laws were enacted by the Legislature decades ago and impose broad requirements on other state agencies and departments, along with city and county governments, to make meetings and records available to the public.

            "This appears to be the second bad decision rendered by the courts as it pertains to the Legislature," said Frank Gibson, executive director of the Tennessee Coalition for Open Government.

            He said it appears to allow the Legislature to "pick and choose" what to make public and creates a "double standard." It is "a bit hypocritical" for the Legislature to be exempt from laws that it has enacted to apply to other parts of government, Gibson said.

            "Any ruling that furthers the cloaking of government action in secrecy has the potential to frustrate and defeat our very system of constitutional government," said Rick Hollow, attorney for the Tennessee Press Association and the News Sentinel.

            Frederick said she was "tickled" with the Bonnyman ruling as supportive of legislative independence in dealing with its own affairs.

            The chancellor's ruling is "obviously broad enough that one could take everything I have in my office and say it's closed as a matter of policy," Frederick said. But that is not going to happen, Frederick said, because the Legislature has -- as a matter of policy and not because of the law -- made almost all of its records open to the public.

            "We certainly don't want to do business in the dark," she said. "That is not our intention."

            The decision grew out of Frederick's refusal in October to comply with a request from Terry Adams of Nashville for copies of any files pertaining to "sexual harassment or sexual discrimination charges" against state Rep. Chris Crider, R-Milan, along with "counseling referrals or disciplinary actions" taken against him.

            Frederick cited a legislative internal policy on charges of sexual harassment adopted Jan. 7, 2004, by House Speaker Jimmy Naifeh and Lt. Gov. John Wilder that calls for such charges to be kept confidential.

            Her refusal letter, quoted in Bonnyman's opinion, says the confidentiality is important to "encourage reporting of any incidents and to protect the reputation of any person wrongfully charged with sexual harassment."

            Adams' request came with Crider embroiled in an ultimately successful but hotly contested bid for re-election. Nashville attorney Anne C. Martin filed a lawsuit on his behalf to force Frederick to release the documents. Deputy Attorney General Gina Barham sought dismissal of the lawsuit.

            Martin said Adams was interested "just as a citizen." She said she is "not authorized to put anyone in touch with him" for comment.

            In her opinion, filed on Nov. 9, Bonnyman cited both the state constitution and a 2001 legislative amendment to state law on open records as justifying the General Assembly keeping records secret.

            The state constitution grants the Legislature "exclusive authority" to set its own rules -- which includes a sexual harassment policy and confidentiality -- as well as the right to discipline its members, she said.

            "This court will not interfere with the Legislature's constitutional authority to make its own rules," she said.

            Further, Bonnyman said the Open Records Law, as enacted in 1974, specifically provided that the legislative and judicial branches of government were not covered. It did so in defining the type of governmental "agency" that was covered.

            Then in 1984, the chancellor said, the definition of "agency" was amended to specically include the legislative branch -- then switched back to excluding the Legislature in a 2001 amendment. The 2001 amendment was within a comprehensive bill that dealt with records management and electronic or computer records.

            The switching back and forth, she said, shows the Legislature "is mindful of the definition of agency and the role that it plays within the comprehensive public records act."

            She also noted that the Legislature has passed various statutes specifically declaring some old records be stored and kept available to the public. By passing a statute to declare some records open, she said it was obvious the Legislature regards others not mentioned as closed.

            "It is a fundamental rule of statutory construction that the Legislature must be presumed not to have intended to do a useless and vain thing," she said in the opinion.

            "Thus, if the General Assembly had intended for the public records act to apply to its records, then there would have been no need for it to have enacted these provisions declaring certain categories of its records to be public records," she said.

            Hollow said the chancellor's decision, which Martin said was not being appealed, would not serve as a legal precedent outside of Davidson County Chancery Court. Thus, the question of whether the Legislature is covered by the Open Records Law remains unresolved in the state's court system.

            He said the prospect of the Legislature being able to close records as it wishes runs afoul of the fundamental principle that government is based on the consent of the governed people.

            "The only way we can consent validly is through knowledge," he said. "Even the chancellor who blazed new ground would certainly concede, I hope, that as a matter of law we have to know what we're doing. How can people give consent to the government to permit it to continue to represent them if they don't know what it's doing?"

            Tom Humphrey may be reached at 615-242-7782.