NASHVILLE – Exceptions to a state law intended to make government records open to the Tennessee public shot up five-fold over the last 30 years to 538, according to a new report released Tuesday.
The Tennessee Public Records Act presumes that all state and local records are available for inspection unless otherwise stated under state law.
Since 1988 when there were just 89 exemptions, state lawmakers have embarked on a binge, passing 449 laws denying public access to state and local government records in areas ranging from handgun-carry permit holders to many facets of how the state seeks to recruit companies to locate to Tennessee.
The report was compiled by the Tennessee Comptroller’s Office of Open Records Counsel at the request of Lt. Gov. Randy McNally, the Senate speaker, and House Speaker Beth Harwell.
The speakers’ request was made last year after an appearance before the Tennessee Press Association where editors and reporters raised concerns regarding growing government secrecy from exceptions passed annually in the General Assembly.
“We both believe good government means open government,” McNally and Harwell wrote in their letter to Office of Open Records Counsel.
The letter also said that in the “interest of transparent and open government, we would like to review this list in order to remove or place in the sunset at least some of the various exceptions.”
Jason Mumpower, Comptroller Justin Wilson’s chief of staff, told Senate State and Local Government Committee members that Tennessee’s open records law was passed in 1957 with only two exceptions.
“I will tell you, they are hodgepodge all over the Tennessee Code Annotated,” Mumpower told lawmakers, describing the difficulty of finding exemptions scattered throughout the code. It’s like “trying to find a needle in a haystack,” he said.
Mumpower said only two provisions are set to “sunset” or expire. One deals with investments for higher education institutions, set to go away July 2021. The other are some exceptions created for police body cameras, set to expire July 2022.
A former Republican state representative himself, Mumpower told senators the “challenge for you as members of the Tennessee General Assembly is to balance the need and desire for transparency in government while at the same time protecting private information or information that should remain confidential.”
He said government officials “have an obligation to provide information promptly but they also have an obligation to make sure they’re not exposing anything that shouldn’t be exposed.”
For example, there are prohibitions on releasing information like Social Security numbers, driver’s license and passport numbers, taxpayer identification numbers, fingerprint and retina images, and financial routing codes.
In several instances, Mumpower appeared to suggest lawmakers may want to close off additional information. He noted while one Tennessee law prohibits the home addresses of law enforcement officers from being released, information can still be found in, say, a county Register of Deeds office.
And he said county offices may contain housing blueprints that burglars could take advantage of.
Senate State and Local Government Committee Chairman Ken Yager, R-Kingston, later said he will appoint a large subcommittee to sort through exemptions and come back with recommendations for next year.
“We need to look at it,” said Yager, adding he likes the idea of a “sunset” provision for the laws where years-old laws can be re-examined in a modern context.
The Associated Press quoted Yager saying “we should take a very careful approach to this and avoid any knee-jerk type of reaction.”
During his presentation, Mumpower said the state’s exceptions don’t include court rulings, federal law and agency rules.
He noted some laws are obsolete such as an exemption requiring the state’s 911 emergency communications districts to keep unpublished numbers confidential.
That may have been viable in the pre-internet era where the main source of information was in phone books, Mumpower said. Trying to figure out what numbers are considered private now requires far more, often expensive work, Mumpower said.
Dick Williams, chairman of Common Cause Tennessee, who has advocated for open government for decades at the Tennessee Capitol, said “a lot of us have been concerned with the proliferation of exemptions.
“There’s always somebody’s opinion that the exemption needs to be there and they need to be considered. But I think basically, the Legislature should seriously limit the number of exemptions,” Williams added. “The basic policy of open record and meetings is sound and helpful to everybody.”
Deborah Fisher, executive director of the Tennessee Coalition on Open Government, said the number of exceptions “has grown quite a bit, I think it’s about 15 a year if you figure over 30 years. I think there needs to be a very deliberate process as [to] exemptions.”
She said the public records act “exists to protect the public’s right to know what government is doing. So there are some exemptions related to privacy of individuals there and that’s really important.”
But if there is to be a review of exceptions, “it needs to be done so that we protect the right to know what government is doing. That’s the most important part. And I think that it’s probably due to look at some of these exemptions that have been passed over the last 30 years.”
Contact staff writer Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow him on Twitter @AndySher1.