Governor Explains Reasons Open Government Ombudsman Needed

By FRANK GIBSON

TCOG Executive Director

Gov. Phil Bredesen remembers when, as mayor, he had to order the Nashville police department to stand down on what it was charging a reporter to copy public records.

“There’s a set of laws that are pretty clear about which records are open,” Bredesen told editors, publishers and Capitol Hill reporters at a TPA-Associated Press Legislative Planning on Feb. 8 in Nashville.  “I know that when I was mayor of Nashville, the problem I typically had was someone just saying no, using the bureaucracy.

“I remember one time our police department was mad at some reporter and started charging him $5 a page for records tat they were copying. We had to step in and say ‘No, you can’t do that.’”

The second-term governor used that first-hand example to explain one of the reasons he decided to fund an open government ombudsman in the office of state Comptroller John Morgan.

Representatives of the Tennessee Coalition for Open Government, TPA, the Tennessee Association of Broadcasters and the AP met with Bredesen and his senior staff in late 2005 to discuss problems reporters and citizens have trying to use Tennessee’s public records and open meetings laws. The delegation laid out the need for improvements in enforcement, including an independent office to resolve disputes when litigation is not a good option and possible rewrites of the records and meetings laws.

“Open, transparent government is for all Tennesseans,” Tom Griscom, TCOG president and TPA’s vice president for dailies, said.

Gov. Bredesen's decision to establish an ombudsman so any citizen has access to free advice on how to receive a document or attend a meeting is a positive step. With time. perhaps the ombdsman's work will decline as local and state officials better understand and apply the state laws.”

Griscom is publisher and executive editor of the Chattanooga Times Free Press.

While operational details will need to be sorted out in coming weeks and months, Bredesen described the ombudsman approach as “just one step” in what he predicted would “make a significant difference” in opening up records for citizens and newspapers who can’t or choose not to “write large checks to lawyers for something that is in contest.”

He added that it would take time to see how the office works, adding that the ombudsman’s job should eventually include “open meetings’ cases where issues are “clear cut.” Other adjustments could be made after everyone has had time to evaluate the performance of the office and before Bredesen leaves office in four years.

Issues as they relate to state government were left in some limbo but Bredesen noted the state attorney general has constitutional jurisdiction there and that a special joint legislative committee is studying that area. It is expected to report its recommendations by Dec. 1

Here is a transcript of Bredesen’s announcement which was followed by a question and answer period and repeated that night at the annual TPA Governor’s Banquet:

Bredesen:  When I was here last year, we began the discussion of open government, in particular some ways of making sure that not only large organizations with the ability to write large checks to lawyers have access to records when they’re in contest. One of the things I said I would do is look into the possibility of putting together some sort of ombudsman – a person somewhere in government who could be a facilitator and make these things happen.

I want to report to you this morning, coming back a year later, that I have done so. We’ve placed the money for such a person in the budget which will be submitted shortly to the General Assembly.

There has been a lot of discussion internally, including with (Attorney General) Bob Cooper. I think the most appropriate place to put that person is in the Comptroller’s Office, John Morgan’s office. The rationale there is that what I was told was that the bulk of the problems that are not easily resolved occur with local government.

Certainly we have other mechanisms, including with Bob Cooper’s office in state government, to deal with these things. And John Morgan is the person who is constitutionally challenged with overseeing the operation of all local forms of government. I think he’s committed to open government. He is the person who oversees local government and is certainly willing to undertake this.

I think it will make a significant difference in opening up records to people who don’t want to or don’t have the ability to write large checks to lawyers for something that is in contest.

I don't see this as the end of the game, or end of everything, just one step responding to some things that were brought up by this organization. We’ll continue the process in the months and years ahead to make sure that we do make available all those records that are legally available and keep under consideration changes in the law that might be necessary to deal with records here in state government.”

When would this start?

Bredesen: “The budget should be approved in May. He (John Morgan) has a big enough department that I’m sure he can, we can work to identify that person and maybe even get them on board prior to that date. I’d say that to get this thing going in the spring is a realistic goal.”

Cost?

“Bredesen: We want to hire someone who has kind of lawyer credentials…so it’s a well paid position for somebody who has the legal expertise. I suspect it may well be a lawyer, someone with the technical expertise to know what records are open and the standing to tell local governments to take care of that.”

Since the Comptroller is selected by the legislature, are you concerned that the legislature might interfere with such a position?

Bredesen: “All of this has that potential, but it (Office of the Comptroller) is a constitutional office that is independent of the executive branch. The important thing is that this is the place in government that is formally charged with overseeing the operations of municipalities and counties. So, it seems like a most appropriate place to put it.”

What is its legal authority for dealing with the state? Bredesen: “The Attorney General has the ultimate authority constitutionally to state the state’s position on whether something is open or not. I’m not proposing any fresh legal authority. What John (Morgan) said to me was because of all the ways with which we interact with local government and all the influence this person’s moral authority to compel these records to be open is tremendous.

Now, if a mayor somewhere still says ‘heck no,’ John can do the same thing he can do on a range of other things he does – he can go to court and force governments to comply with the law.  He was pretty confident that 95% of the time when these issues come up, if there is a recalcitrant sheriff, or mayor, or trustee, his office has the clout to cut through that.”

So the state is not covered?  Bredesen: “There is a study committee process that is underway to look at state government records.  That was generated out of this group as well. What I’m trying to do here is not set up some independent avenging angel on the subject of state records, but to address a very specific and what I thought was a very real issue that was brought up to me – that if you’re not rich, or don’t have a big checkbook, it is hard if somebody is fighting you about those records and we have a lot more problems with local government than with state government.

“This person, if somebody brings something to them, this person can easily facilitate some of those things, can bring things to the attention of 200-plus lawyers in the AG’s office to compel compliance.

“My sense of it is that while there certainly may be disputes between the State of Tennessee and a member of the press about when a record is open under the law, that may get resolved in the courts.

“I’m not saying to you this brings a new millennium on open records.  We’ve identified a reasonable problem and we’re trying to solve it the way I said.  We found a place to do it, so let’s go see if it works. If we find something that’s not working, then we’ll tackle that.”

Who all would have access? Bredesen:  “Anybody, anybody. John (Morgan) said something very perceptive. Part of the problem that exists in local government is that that the individual requesting these records is someone who is particularly difficult – a thorn in the side – or are particularly obnoxious about how they are dealing with local government. So, it’s really easy for people to just shut their door and do that.”

“The idea in my mind was that any person in Tennessee, who because they are entitled to do so, has reasonable access, and just because you’re not a huge newspaper or TV station with lots of money, you still have access to this. I certainly would hope that while there have been occasions where large news organizations have gone to court over things, sometimes they win, sometimes they lose, there’ll always be some interaction going on.

“I hope this person can short-circuit a lot of that stuff as well and that when Channel X or newspaper Y has a problem, this becomes a place to go rather than going to court.”

What else might the office deal with?  Bredesen: “The special ethics legislation set up a process for handling other kinds of ethics type complaints last year.  We’ll see how that plays out.”

“I just saw this as a narrow, specific issue – one that I had a lot of sympathy for – and promised to get someone on board and find a home for them.  Let’s see how this works. If there are problems with this, we’ll fix that. If not, it will be at least a step forward on the subject of open records.”

This is just for records, not meetings? Bredesen:  “I think we can be open about that. I think the open records issue is a lot narrower and more definable. There’s a set of laws that are pretty clear about which records are open. I know that when I was mayor of Nashville, the problem I typically had was just someone just saying no, using the bureaucracy.  I remember one time our police department was mad at some reporter and started charging him $5 a page for records that they were copying. We had to step in and say ‘No, you can’t do that.’

“Open meetings are a little more difficult. O that subject, I’d like to see if maybe there are some things we can do in helping with that. There’s obviously a huge open meetings issue going on in Tennessee right now – over in Knoxville.  That will get resolved in the courts.

“I’d say priority one for me is open records, but I certainly think that open meetings, particularly any kind of clear cut cases in that regard, ought to be the province of this person as well.”

Would there be a type of registry entered that would show over time the resolution of certain petitions brought before this ombudsman?

Bredesen: “Yes, I certainly think that if you are the ombudsman for open records, you ought to have open records.”

“We’ll make sure that is being taken care of.”

Frank Gibson is a retired Tennessean reporter and editor and serves as TPA’s Freedom of Information coordinator and executive director of the Tennessee Coalition for Open Government. He welcomes questions and comments at fgibson@tcog.info, 615-202-2685.

TCOG is a non-profit, non-partisan membership group working to improve and preserve access to public information. For membership information, write TCOG, P. O. Box 22248, Nashville 37202.