News Column 8/20/06 

By FRANK GIBSON

I get calls regularly from citizens and reporters with open government questions, but this one threw me. The AP reporter wanted to know my reaction to statements an assistant state attorney general made at the National Conference of State Legislatures.

He said Janet Kleinfelter, “senior counsel” in the AG’s office, had just told NCSL attendees that the press drives government underground when it asks to see volumes of public records.

“The response is to quit doing things in writing,” Kleinfelter said, referring to public officials. “Everything starts getting done orally. You start having everything done by telephone.”

People stop writing emails and stop writing down what is said in meetings, she said. “When we get sued…, there’s no record, there’s no history for us to go to, for lawyers to go to to say ‘Here’s why we did this. Here’s why we did that.’”

What an indictment of public officials. Since her frame of reference had to be Tennessee, I was struck by no mention of problems this poses for citizens who might need information. What an example for the rest of the country – officials writing their own rules to get around the law. And, this is somehow the fault of reporters and editors?

It seemed the finger was being pointed in the wrong direction. It was really about openness being such a pain in the butt for people in government, especially for the lawyers who get paid to defend them when someone questions their actions.

When Tennessee lawmakers got laptop computers a few years ago, the Attorney General advised them not to put anything in an email they wouldn’t want to see on a billboard the next day. They apparently don’t have to be as careful these days because the AG has assured them the records law doesn’t apply to them anymore. And, The Tennessee Journal, an authoritative political newsletter, reported recently that members of the General Assembly can delete emails daily, and all are destroyed in 30 days. That’s a much more liberal standard than what the legislature requires of the executive branch. Federal indictments claiming alleged corruption in the Sundquist administration came after the FBI carted out an estimated 1 million emails.

Tennessee law says state and local  records “made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency” are a matter of public record unless specifically exempt by law. The legislature has exempted more than 230 sets of records, plus its own.

The Attorney General told a Nashville judge last year the legislature exempted its records in 2001 by removing itself from the definition of “governmental agency.” Thus, the AG argued and the judge agreed, the legislature can withhold sexual harassment complaints against any member.

At the time that was done, the Senate was told it was a cost-saving measure. The state’s computer jockeys were charging the legislature to stores and manage records they didn’t have and therefore weren’t maintaining.

Kleinfelter also opined at NCSL that sexual harassment complaints ought to be confidential. Some argue that closing such information encourages more complaints.

Governor Bredesen said he felt that way until he saw a spike in complaints even after state workers were told their reports would be open to public inspection. He told TPA members in February he had thought better about asking the legislature to close that information after discussions with the Tennessee Coalition for Open Government. Instead, he asked the news media to voluntarily withhold victims’ names unless it is necessary to use them.  In the latest high-profile case of alleged harassment, involving the dismissal of a top lottery official, the media chose not to use names, even though a court made them public.

Kleinfelter said the information should be closed to protect the privacy of the accuser and the accused because allegations might prove later to be false. The problem with her argument is that when legislators make information confidential they sometimes make it a crime to divulge anything. Politicians and bureaucrats hate whistleblowers, so such an exception would allow whistleblowers to be intimidated, in violation of their First Amendment rights. Which is the better deterrent, threat of exposure or the promise of eternal confidentiality?

General Kleinfelter and the AG’s office seem to think too much openness hurts government. “Lawmakers and policymakers get worried about making ‘out of the box’ suggestions on difficult topics because they fear their ideas will be printed in the newspaper the next day,” AP quoted Kleinfelter as saying.

It is the deal making that worries the public. Take the case in Elizabethton where 79% of the voters elected on Aug. 3 to remove two school board members from office for an alleged “Sunshine Law” violation.

The meeting in question was three years ago, 300 miles away from Carter Country, on a Sunday night, in the Gaylord Opryland Hotel. They hired a new schools director, a decision that later became controversial. At one point, the new director imposed a public records policy that required all requests in writing, a one-week wait to inspect any record and a two-week wait to get a copy of.  (Note: The Tennessee Court of Appeals rules government agencies can’t require requests in writing.)

Parents in the Elizabethton said they didn’t want to sue the school board because they felt it was like suing themselves. They’d be paying their own lawyer and the school board’s, through their taxes. In sum, they’d be paying extra to have a law enforced.

That scenario is what caused two reputable national organizations to rank our open government laws 45^th in the country. To get anything the government doesn’t want to release, citizens must sue on their own dime.

Attorneys in a public records lawsuit in Chattanooga remember General Kleinfelter showing up to defend the constitutionality of the law and telling the federal judge that she personally didn’t like the law. They recall her explaining that she had to defend it because it was her job. She then showed her disdain by sitting at the counsel table with lawyers attacking the law, away from private counsel there helping her defend the law.

This was not the first time the AG’S office – by omission or commission -- has shown hostility to the principles of open government. It once advised the City of Bells it could ban citizens from videotaping council meetings for broadcast on local cable. The AG rescinded that opinion after being shown (by the media) some legal precedents state lawyers had ignored.

It opined once that the economic development board in Unicoi County wasn’t covered by the open meetings law. It took that one back two months later when Mark Stevens and folks at the Erwin Record pointed out the city-county board had agreed to abide by the “Sunshine Law” when it asked for certification to get state grants. Talk about bait and switch.

The Attorney General is selected by the Tennessee Supreme Court. That body rejected arguments 30 years ago that our “Sunshine Law” was unconstitutional by noting that open government is inherent in the Tennessee Constitution’s free speech and free press clause. The five justices added: “The evil of closed door operation of government without permitting public scrutiny and participation is what the law seeks to prohibit.”

Whatever point General Kleinfelter was trying to make, we can be thankful for one omission. She didn’t tell our visitors about one state lawyer’s decision to shred notes to avoid disclosure of details of a sexual harassment complaint against the governor’s dismissed chief lobbyist.

General Kleinfelter’s disclosure could have made us look a little backward since destroying public documents is a crime in some states. The person who shredded the records remains employed by the state.

The state’s highest court is in the process of selecting a new Attorney General. It might be time for the court or someone to ask applicants how they feel about open government and what they would do to uphold the court’s mandates.

Justice Cornelia Clark told a Tennessee Municipal League crowd in the spring that it makes more sense to comply with open government laws than to resist. She reasoned that it takes less time, less energy and other resources than defending a lawsuit.

The ousted Elizabethton school board members might agree.

Frank Gibson is executive director of the Tennessee Coalition for Open Government. He welcomes questions and comment at fgibson@tcog.info or (615)-202-2685. A list of records exemptions can be found under “The Law” at www.tcog.info.