A special state legislative committee tasked with assessing government transparency in Tennessee appears to have concluded that tinkering with state’s public records statutes may be in order.
Just how comprehensive a rewrite, and where exactly to start, remain unclear, though.
Last week, House and Senate lawmakers serving on the Open Records Ad Hoc Committee concluded their assignment of investigating and recommending changes to transparency rules that stipulate what documents and information is and is not available for public inspection.
But committee chairman Jason Zachary, a Republican state representative from Knoxville, said the process of identifying and deciding how to remedy legitimate transparency trouble-spots has been tougher than expected.
“We didn’t realize what an extensive and exhaustive lift this would be,” he said.
As a matter of law in Tennessee, all public records are presumed open for public inspection unless otherwise indicated by the Legislature.
Over the years, however, lawmakers have become adept at stipulating that some information or records created or covered under statutes and program the General Assembly enacts are in fact exempt from that assumption of transparency.
“Essentially, if there is a law saying that the record is not open to the public, then it cannot be released,” Jason Mumpower, chief of staff to the state comptroller, told members of the committee back in August.
“The amount of exceptions have grown over time,” added Mumpower.
In 1955, when the Act was passed, there were just two exceptions to it written into law. By 1988 there were 39. Now there are 563 exceptions, Mumpower said.
The comptroller’s office tabulated all the existing state-law exceptions to the Open Records Act for the committee to scrutinize.
Trying to protect legitimate concerns of privacy and confidentiality on the one hand, and ensuring the public’s right to keep a close watch on the activities of government on the other, can make for a tricky balancing act, said Mumpower.
“Government officials certainly have an obligation to quickly provide access to public records, but they also have a duty to ensure that they do not disclose confidential information,” he said, adding that lawsuits have arisen in Tennessee as a result of one party thinking a record was open under the wording of a law, and another party believing it confidential under the very same wording.
Zachary anticipates a bureaucratically laborious task that will take time and require more staff resources. “Some states have taken up to ten years to walk through those exemptions,” he said. Nevertheless, the committee is expected to advise the full Legislature that the time has come to develop a process for “sunsetting” certain existing exceptions deemed unnecessary or overly broad.
An easier mission will be making sure that more sunlight is cast on the process on the front end, Zachary predicted.
Requiring that expressly designated committees in both House and Senate chambers specifically consider bills with transparency law exemptions provisions tacked on — and explicitly determine whether those provisions are indeed warranted — would help address that issue, he said.
Bill Lee, who will take the reins as the state’s governor from Bill Haslam in January, has indicated he too perceives a need for more openness in Tennessee government.
Lee has promised a “complete overhaul of our open records and open meetings acts to make government more transparent.”
“Tennessee taxpayers deserve a transparent and open government,” Lee’s transition website declares. He’s also committed to establishing “a new program to invite and receive public comments on new laws before signing.”
Furthermore, Lee says he’ll make it a priority “to get out of the bubble of Nashville to deliver State of the State addresses in all three Grand Divisions throughout his tenure.”