The first sentence of Tennessee’s Open Meetings Act reads, “The general assembly hereby declares it to be the policy of this state that the formation of public policy and decisions is public business and shall not be conducted in secret.”
The act, which has become known as “the sunshine law,” turned 40 years old Feb. 17 with little pomp and circumstance, according to Frank Gibson, Tennessee Press Association public policy director.
“Passed in the shadows of the Watergate scandal in 1974, it contains the highest aspirations of any open government statute I’ve ever seen,” Gibson said. “Perhaps there are things to celebrate. The law has held up for four decades. It is routine in most towns and counties to give adequate public notice, making agendas available in plenty time for people to know what’s to be considered and actually discussed.”
The sunshine law and its compliment, the state Open Records Act passed in 1957, are some of the most progressive and liberal of their kind among U.S. states, according to Elisha Hodge, who serves as open records counsel for the Tennessee comptroller’s office.
Hodge works as a mediator between those who request files and the government agencies where a request is made. She also responds to public records requests to the comptroller on a regular basis.
“I am here to try and help mediate those situations to try and facilitate the best outcome for everybody,” Hodge said.
She said the Open Records Act is important to not only the media, but also everyday citizens to give them the opportunity to know what decisions are made or under consideration in government.
“It gives them the ability to know what the government is doing, because what’s important to the media may not be important to the public,” Hodge said. “A lot of times, it’s not… It’s what’s important to people, and many times it’s things that are going on in their own backyards.”
Hodge said the law is basically clear on what is open and what is protected, such as a person’s personal information. She said the majority of requests go smoothly, but there are questions that arise from time to time.
“I think there are some ambiguities in the way certain things are written, but that’s why we have attorneys,” Hodge said. “I think it depends on the entity you are dealing with and the person within the entity you are dealing with.”
When it comes to misconceptions in making an open records request, Hodge said there are a few generally unknown to the public.
“I think one of them is that they can get immediate access to public records,” Hodge said. “Another thing is because they are taxpayers and citizens they should not have to pay a fee to access public records. The requests that are made also need to have enough specificity for the people honoring the requests to know what someone is asking for.”
Local Open Government
Mike Jennings serves as attorney for a number of government bodies in Wilson County, including the Wilson County Commission and Wilson County Board of Education.
He oversees open records requests often and also makes sure those government entities follow the sunshine law regarding open meetings.
“I have probably gotten more records requests in the last 12-18 months than any other time that I can remember,” Jennings said. “The total number of requests came from 10-15 people, and out of those, two to three people made multiple requests.”
In general, Jennings said the laws are pretty straightforward.
“It’s a pretty clear piece of legislation,” Jennings said. “The difficulty arises in a couple of areas. You’ve got the law that says what records are open and then you have the law that says what records are confidential. I’m going to err on the side of caution.”
Jennings said confusion among the public comes when what he calls “hybrid” requests are made. He said that’s when a public record is requested that contains confidential information.
“Those are the ones that are more complicated,” he said.
Jennings said another misconception arises when those requesting records expect them immediately. The law gives government entities seven business days to either produce the records requested or a written explanation as to why it would take longer.
“They become problems because of the instantaneous society we are living in,” Jennings said. “When someone sends in a request via email asking for a record immediately, they may become frustrated when we don’t produce it as quickly as they’d like. I’m going to go through that request and make sure we are not releasing personal information. From the receiving end, I can see those frustrations.
“One of the things I used to see, and I’m not seeing it as frequently. It’s not common knowledge that what government people make. Those salaries are public record.”
Jennings said the requests he receives currently come from those who may have grudges with government or like the decisions made.
“Right now what I am seeing is they want a lot of documents, but their underlying beef is political in nature,” he said. “It’s kind of like Monday morning quarterbacking.”
Jennings, who also is mayor of Watertown, said a theory he has is that the larger the government entity, the more requests it receives.
“I think you are going to get more public records requests the larger the government entity,” Jennings said. “If someone wants to know what’s going on in Watertown, they will likely pick up the phone and call me. If it’s not confidential, I’ll just tell them.”
Ironically, Jennings said the first public records request in his 31 years as Watertown mayor came recently from another city.
“It’s just a theory,” he said.
Andy Wright serves as city attorney for Lebanon. He said open records requests remain steady but aren’t overwhelming.
“We don’t get bombarded with requests, but we get, on average, about one a week,” Wright said. “Usually, when we get a request, it has something to do with litigation somewhere.”
Wright said he works to follow the law to the letter, and that includes a recent denial for records. He said a company out of North Carolina requested all the building permits for the last 10 years to develop a mapping software.
“Our law is kind of unique in that you have to be a citizen of Tennessee to be granted a request,” he said. “When we realized it was from North Carolina, we told them no and we never heard back from them.”
Wright said he uses his background as a former policeman in handling requests for open records. He said a good officer is accurate when records, such as reports, are created because they will likely be used in court.
“We’ve been very compliant with a request,” Wright said. “We try to go above and beyond when a request is made.”
On the open meetings side of things, Wright said few challenges have been made against the city, and nothing recently.
“It’s pretty easy to comply with open meetings, but the law hasn’t kept up with technology,” he said. “I regularly remind the mayor and council about emails where two or more members work toward a decision on a matter. It’s called deliberation toward a decision, and it’s not allowed under the Open Meetings Act.”
Openness on the Federal Level
Within the confines of the federal government is the Freedom of Information Act.
This law, which has modified several times since it was created, allows any U.S. citizen to request U.S. government documents.
The requests, which are done in writing but may be submitted online, generally include a considerably longer amount of time to get a response and can be denied for several reasons beyond what Tennessee law allows.