Panel:  When Is Access Excess?

Study committee finds agreement on open-government laws elusive

By Tom Humphrey (Contact)
Monday, September 24, 2007

NASHVILLE — Sharply contrasting views have become apparent as a study committee reviews Tennessee laws requiring openness in government, raising doubt about whether the panel can agree on any changes that the Legislature will approve.

In hearings last week, for example, current laws calling for public access to government records and open meetings of governing bodies were roundly criticized, but from completely different perspectives.

Local government representatives depicted current statutes as already mandating too much openness, stifling efforts by officeholders to become educated on issues, diverting employees from other duties and perhaps even benefiting burglars.

They suggested changing laws to put more restrictions on the release of some records and to allow more closed-door meetings when sensitive subjects are discussed.

Open-government advocates, on the other hand, depict current laws as riddled with exceptions, hard to understand and often ignored by government officials. Since Tennessee law provides no penalties for violations, residents fighting against secret meetings have little recourse unless they can afford to hire a lawyer and go to court.

Advocates of open government suggest the Legislature consider mandating civil penalties for violations and require violators to pay attorney fees for those who take their cases to court and win. The list of exceptions to open records and open meetings should be reduced and narrowed, they say.

The disagreement was apparent in last week’s meetings among members of the Open Government Committee as well as among those presenting testimony. The panel is composed of both citizen members and legislators.

The panel has been divided into two sub-committees, one focusing on the state’s open-records law and the other on the open-meetings statute, also known as the “sunshine law.” After further meetings, the group is to present recommendations to the General Assembly early next year.

Both sides voiced hope that the recent appointment of an “ombudsman” to take citizen complaints about denial of access to public records will help end disputes on that front. But the ombudsman, Anne Butterworth of the state Comptroller’s Office, will not deal with sunshine law complaints.

Ogden Stokes, a Nashville attorney who serves on the panel and who has represented city governments, said there are valid reasons for “executive sessions” of local government bodies that are not allowed under current law, such as deciding a property owner’s challenge to his or her tax assessment.

“One doesn’t like to look the property owner in the face and say, ‘I think he lied,’ ” Stokes said, while such candid discussions are more likely in a closed meeting.

Also, Stokes said the sunshine law “tends to weaken the legislative branch” as compared to the executive branch or the judicial branch.

On the other hand, Chris Fletcher, editor of The Daily Herald in Columbia, told fellow committee members the law is being violated “more frequently than most people would like.”

Fletcher’s newspaper has a pending lawsuit that contends the Columbia City Council violated the open-meetings law in a session at which the city manager was fired.

He told the panel that, on another recent occasion, county commissioners serving on an “ad-hoc committee” used e-mail to privately decide on their recommendations about an animal shelter without a public meeting, then “magically presented a two-page report” without discussion.

Chad Jenkins, deputy director of the Tennessee Municipal League, and David Connor, executive director of the Tennessee County Commissioners Association, both told the panel that some aspects of current laws go too far toward openness.

Jenkins said one Tennessee city, which he declined to name, recently received a request for a list of all homes with burglar alarms, which the city required to be registered with police and fire departments. Under current law, he said the city would legally be required to provide the list, even though it could be used by burglars in determining homes to target.

In an interview afterwards, Jenkins said the request was denied and “common sense prevailed” in spite of the law.

Also, Jenkins said “conspiracy theorists” or political activists in some communities are prone to flood their governments with record requests for no valid reason, diverting employees from other duties and costing taxpayers.

The 111 cities responding to a survey by the University of Tennessee’s Municipal Technical Assistance Service reported an average of 11 records requests each last year. The highest number was reported by Bristol, with 471 requests from 402 individuals.

Knoxville and cities with populations of more than 100,000 did not respond to the survey, according to MTAS attorney Dennis Huffer.

As for the sunshine law, Jenkins said it was inappropriate to mandate that “hiring and firing” decisions be made in public.

Connor said many county commissioners are “nervous” or “kind of paranoid” about the sunshine law, believing any dealings with another commissioner may lead to a lawsuit from someone making a “hyper-technical reading of the law.”

Jenkins provided a list proposed changes to the open-records law. Among them were proposals to make confidential employee applications, burglar alarm registrations, local government “special census records,” documents in the possession of a city attorney and records on “active” police investigations.

Frank Gibson, executive director of the Tennessee Open Government Coalition, said the current sunshine law was hailed as a model when enacted in 1974 but “suffers now from wear and tear and does not provide the protection it once did.”

TCOG pushed a bill in the last legislative session that would have overhauled the law, including a provision that would impose a $50 civil penalty against violators.

The study committee was set up after the bill failed.

“Hopefully, we can find some happy medium,” said Rep. Ulysses Jones, D-Memphis, a member of the panel.

At the same time, however, Jones complained that the current law prevented him from meeting with three Memphis city councilmen to talk about pending legislation.

Gibson and Fletcher both said the panel appears to have moved from its original task, which they saw as making government more open to citizens.

“It seems like everyone comes to the table with their own ideas. I guess I shouldn’t be surprised,” said Fletcher. “My concern is that the focus on citizens will get lost in the shuffle.”

Gibson said TCOG is “not insisting on anything except that there needs to be some improvement in the law” and is presenting ideas on how to reach that goal.

“Instead of getting responses to those proposals, we are getting counterproposals about putting more exemptions in the law,” Gibson said.

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

© 2007, Knoxville News Sentinel Co.