State Rep. William Lamberth has completely overhauled a public records bill that received significant public outcry to a version that creates increased government transparency.
Rep. Lamberth (R-Portland), who is also the House Republican Majority Leader, initially drafted HB 0626 to protect government employees from abusive requesters. As The Tennessee Star reported, the original bill would limit public records access to as few as three requests per year, and that proposal was met with backlash on social media.
While government watchdogs and media might have disagreed with the measure that may have appeared to be directed toward them, Leader Lamberth was requested to assist in dealing with a situation where certain records custodians in his district are being intimidated and harassed, an issue for which there is no current remedy.
The five-page amendment that makes the bill seeks to balance public records requests that constitute harassment with improving the public’s access to basic government records.
The most recent version of the proposed legislation would allow a public records custodian to pursue judicial relief from a public records requestor, with clear and convincing evidence that the records requests constitute harassment.
The measure defines harassment as 12 or more public records requests to the same government entity within a one-year period that are also made in a manner that would cause a reasonable person to feel seriously abused, intimidated, threatened or harassed; that the conduct, in fact, seriously abuses, intimidates, threatens or harasses the person; and that the requests are not made in good faith, are made maliciously or are not made for any legitimate purpose.
Legitimate purpose is further explained as including, but not limited to the gathering of information for the purpose of publication or broadcast; investigating or evaluating a legitimate claim or potential claim against a government entity, its agents or employees; or using the information for a commercial purpose.
The remedy would be for the government entity to charge the harassing requestor for a period of one year for the viewing of public records, as if they had requested copies of the records.
That government entity will have to provide a written report to the Tennessee Comptroller’s Office of Open Records Counsel no later than three months after the petition to the court has been made.
The Comptroller’s Office of Open Records Counsel will track the reports and provide a summary to the Advisory Committee on Open Government to enable an evaluation as to the use of the process.
To facilitate access to public records, the second part of Leader Lamberth’s proposed legislation also requires that government entities that have a website will have to provide basic information on that website by January 1, 2020.
The basic information government entities would provide on their website would include meeting agendas that clearly describe the matters to be discussed or decided with the associated documents at least 48 hours in advance and draft meeting minutes or contact information for the purpose of obtaining draft minutes, if approved minutes are not yet available.
Meanwhile, the Advisory Committee on Open Government will provide a report and recommendations to the Tennessee General Assembly by January 1, 2021, as to what basic information is available to citizens on governmental websites.
The basic information for each that should be provided for each government entity that will be reported on by the Advisory Committee on Open Government includes:
- Contact information of elected officials
- Agendas of upcoming meetings as well as at least the 12 most recent meetings
- Documents provided in a packet to the governing body in advance of an upcoming meeting as well as the 12 most recent meetings
- Current and previous five annual budgets
- Current and previous five comprehensive annual financial reports and audits, including summaries or information that provides an explanation and context to the financial reports
- Charter or other organizing or governing documents of the government entity
- Policies, rules, ordinances or resolutions governing the public meetings, hearings and records of the governing body
- Contact information for the party responsible for more information about public meetings, hearings and records, including the name and phone number of each person
- Contact information of the public records custodian
Lamberth’s HB 0626 passed out of the Civil Justice Subcommittee and is scheduled to be heard in the full House Judiciary Committee on Wednesday, April 10. The companion Senate bill SB 0590 sponsored by Senator Ferrell Haile (R-Gallatin) is scheduled to be heard in the Senate Judiciary Committee on Tuesday, April 9.
Another public records bill HB 0665, sponsored by Rep. Jeremy Faison (R-Cosby) prohibits a government entity from entering into a confidentiality agreement with a third party in regards to records that are otherwise considered open to the public and are not otherwise considered confidential or protected under state or federal law.
In presenting the amendment that makes the bill, Rep. Faison said the measure codifies current law allowing a citizen to find out what a payout was after the fact, excluding anything to do with economic development and any current protections under the law.
There are 564 exceptions to Tennessee’s public records laws as of August 2018, up from 538 in January 2018. The additional 26 exceptions came about during the 2018 legislative session.
Rep. Faison’s bill passed out of the House Public Service & Employees Subcommittee and is headed for the House State Committee on Tuesday, April 9. The companion Senate bill, SB 0478, sponsored by Senator Todd Gardenhire (R-Chattanooga) is scheduled to be heard in the Senate State and Local Government Committee the same day.
As reported previously by The Star, another bill sponsored by Rep. Martin Daniel (R-Knoxville) under HB 0370 that would have prohibited businesses that receive taxpayer funds to determine what becomes public information by claiming “trade secret” failed in the House Public Service & Employees Subcommittee on March 20.
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Laura Baigert is a senior reporter at The Tennessee Star.
