As Tennessee Coalition for Open Government’s executive director, I look closely at bills filed in the General Assembly that might improve or reduce transparency in government for citizens of Tennessee.

I try to pay special attention to bills that reduce the transparency of spending decisions, reduce transparency of policy outcomes, make it harder to know in advance what your local government is doing, and, in general, create such an opaque government that the people no longer have a way to hold their government accountable.

TCOG’s mission is driven by the belief that the greatest powers people have over their government starts with their right to know — their right to clear and complete information. Citizens should not be limited to what people in power tell them, but to really know through access to public records, governing body meetings and the courts.

It’s so easy to chip away at that. I often hear complaints around this time of year by people in government and some outside of government who have a special interest in keeping things hidden. They see the public records and open meetings laws as a hassle and a burden, not as a fundamental underpinning of our government that is worth the support and commitment.

Luckily, we have open government advocates in the General Assembly. I hope your representatives and senators are among them.

The General Assembly reconvened this week and we have two more weeks for filing bills. But here are some on my radar so far:

SB1464 by Sen. Jack Johnson, R-Franklin, and 14 other senators. TCOG is most concerned about the part of the bill that makes confidential all names of state and local officers, agents and officials involved in immigration enforcement. (The bill also requires home addresses to be confidential — but that is already in the law.) As written, the bill could even require redaction of officer names from arrest affidavits, court filings and other judicial records. Currently, there appears to be no end date for the duration of confidentiality. And it’s a blanket rule — all officers are treated the same. There also is no “public interest” mechanism to release the identities even if it is crucial to public oversight. The bill prioritizes safety of officers by redacting their names from records, but it sacrifices transparency.

Changes need to be made in this bill. Secrecy can protect bad actors. If identities must be confidential to protect a particular officer or official, it should be for a limited amount of time and based on real and documented threats. Full transparency must be preserved for incidents of high public interest. Simply put, we need to maintain accountability for misconduct of officers and police departments. We think it’s possible to protect our law enforcement without blanket secrecy.

I’m optimistic (eternally but not naively) that the sponsors will make changes to this bill.

SB1723 by Sen. Kerry Roberts, R-Springfield. This is an interesting bill that would reconstitute the board of directors of the Tennessee Education Lottery Corporation and also remove exemptions to the public records and open meetings laws that have allowed lottery officials to keep confidential all information related to hiring or retaining the lottery’s chief executive officer or president. This has been Rebecca Paul since the lottery was established in 2003.

SB1720 / HB1659 by Sen. Ferrell Haile, R-Gallatin, and Rep. Jerome Moon, R-Maryville. Part of this bill would be a sweeping change to exempt from the public records law all application materials submitted by an individual when seeking employment with the governmental entity. That seems a bit much, considering the way we sometimes see government officials or employees misrepresent their credentials and work experience. I’m not sure what reason will be given for such broad secrecy. The other part of the bill would make the addresses on a nominating petition for the office of judge, chancellor, district attorney general, and public defender are confidential and are not open to public inspection. There has been a steady march to make home addresses confidential, particularly of people who feel like they are in more danger than others.

SB1575 by Sen. Adam Lowe, R-Calhoun. I’m told this bill will be amended. But, as written, it changes the “adequate notice” portion of the Open Meetings Acts to say that adequate notice for a public meeting is achieved by posting the notice on a government website in lieu of placing it in a newspaper. It is silent as to when the notice must be posted or what needs to be in the notice. All of this, I believe, would roll back the requirements currently in state law about adequate notice.

Currently, the Open Meetings Act says nothing about publishing in a newspaper, although court cases have upheld publishing in a newspaper as adequate notice as well as inside government buildings. But the Open Meetings Act itself does not list places to publish a notice that would meet the adequate notice requirement.

Instead, when the Supreme Court looked at adequate notice in 1974 shortly after the Open Meetings Act was passed, it said:

“We think it is impossible to formulate a general rule in regard to what the phrase ‘adequate notice’ means. However … adequate public notice means notice based on the totality of the circumstances as would fairly inform the public.”  

That definition has held for more than 50 years and is arguably the wisest way to view public notice, accounting for the many differences between rural and urban cities and counties and individual situations. “Fairly informing the public” is a solid standard that can be applied in all situations. I hope it doesn’t disappear.

SB1643 / HB1544 by Sen. Page Walley, R-Savannah, and Rep. Jody Barrett, R-Dickson. The bill would bring more transparency to the policy outcomes of the Education Freedom Scholarship program by requiring the Department of Education to submit an annual report to the General Assembly. The report would have to be de-identified so that no students can be recognized. It would include a lot of information that currently is not being disclosed, such as how many public school students are getting the scholarships to make the switch to private school and how many are already in private schools when they get the scholarships, which is now more than $7,000. The list includes:

(1)  The county of residence of each recipient; (2) The school and, if applicable, LEA at which each recipient was enrolled at the time of submitting the scholarship application; (3) The private school at which each recipient is enrolled;  (4)  Each recipient’s grade level;  (5)  The annual household income of each recipient; and (6)  The total state expenditures for the program, including, but not limited to: (A)  Third-party contracts; (B)  Administrative costs incurred by the department; (C)  Advertising and marketing expenses; and (D)  Number of scholarships awarded.

Deborah Fisher

Executive Director

Tennessee Coalition for Open Government