NASHVILLE – State legislation drafted in response to Hamilton County government’s destruction of public records cleared its first Tennessee House hurdle this week with both a new sponsor and an amendment.
After assuming sponsorship of House Bill 2578, Rep. Mike Carter, R-Ooltewah, moved the measure through the House Public Service & Employees Subcommittee on a voice vote. It now moves to the full State Committee.
An attorney who once worked for county government himself, Carter told the panel he took over the House bill at the request of Sen. Todd Gardenhire, R-Chattanooga, who introduced the bill this year amid continuing controversy over Hamilton County Attorney Rheubin Taylor’s office’s handling of public records requests.
The original House sponsor was Rep. Yusuf Hakeem, D-Chattanooga.
Carter said the bill was brought because “we had a problem in Hamilton County where some records had already been requested for disclosure to the Chattanooga Times Free Press [and] had been destroyed, much to the consternation of the paper.”
Gardenhire introduced the bill in February after the Times Free Press reported on the county denying records requested by the paper that were apparently subject to open records provisions of state law. Officials later applied charges and destroyed records in apparent violation of the law.
The records were requested to review county compliance with open record requests from people and entities across the board, not just the newspaper. An attorney in Taylor’s office, Dana Beltramo, last fall also went to the county’s Public Records Commission and won approval of a new policy allowing Taylor to destroy documents related to Open Records Act requests after 30 days.
Gardenhire’s bill makes it a criminal misdemeanor offense for local officials to destroy public records that have been formally requested by individuals, businesses or other entities with up to a $500 fine per occurrence. It easily won approval in Senate committees and has been awaiting final floor action since mid-March, when lawmakers recessed amid the coronavirus pandemic.
But citing a request made by the state Comptroller’s Open Records Counsel, Lee Pope, Carter on Thursday asked the House subcommittee to amend the measure to take out the criminal provision while still leaving the fine. And a provision in Gardenhire’s bill that would have required records be kept for five years was also deleted.
“What the amendment says is that if you have records that are subject to produce or have been requested to be produced, then they may not be destroyed,” Carter said. “And that any group that has the authority to order the destruction of records must first contact the person handling those requests to make sure there are no requests for the records before they’re destroyed.”
While doing away with the criminal misdemeanor, Carter said the “destroying agency is subject to a $500 civil penalty.”
Deborah Fisher, executive director of the Tennessee Coalition for Open Government, told the panel the Hamilton County situation revealed two problems in the existing Open Records Act.
“One of them is certainly addressed in this amendment, where many states include in their statutes that you cannot destroy public records once there has been a public request for them. So that is one of the gaps,” Fisher said.
But she expressed concern about the other issue, dealing “with exactly how they went about getting authorization to destroy the records.”
At the state level, Fisher said there are records disposition authorizations “for all different kinds of records that are controlled. That includes how long a type of record has to be retained.”
What the Times Free Press requested from Hamilton County was “actually the public records and the responses to those requests – not the actual documents that might have been the subject of a records request – but how the organization had responded to requests over the past 12 months,” Fisher said
She said she wouldn’t have thought “that could have been allowed to destroy that type of record because it is a record … it’s important to us to track, how’s it working in the field? What are the response times? How much does it cost to gain this information is good to have in terms of monitoring government.”
It’s not just news organizations that are interested in public records, Fisher said.
Some states include local governments in their own open record policies, including barring destruction of records along identical timelines, Fisher said. Others such as Kentucky have separate provisions in state laws setting out how long local entities must retain records, she said.
“We’ve started to see 30-day retention policies in counties” in Tennessee, Fisher noted.
Carter said “I’m not willing to impose on our cities and counties some onerous policy without a clear reason.” But he also told Fisher he was happy to meet with her later “to understand this better.”
The lawmaker later told the Times Free he isn’t sure the bill is “strong enough” and that he planned to discuss the issue with Gardenhire.
Speaking later Thursday afternoon, Gardenhire said he and Carter “will come with an amendment next week to put some minimum time on that” on when counties can destroy information requests.
He said while local governments would still be able to set their own policies to some extent, his thinking is there should be “12 to 18 months before they can move to destroy them.”
Gardenhire said another change would remove fines from the county, noting “we won’t put a cost on the county, but we will put a civil cost on the person who did it wrong.”
Asked later by the Times Free Press why he dropped his sponsorship of Gardenhire’s bill, Hakeem, a former Chattanooga city councilman, said “there are persons that I normally talk with within the community.
“There was some perception I was ‘out to get’ our county attorney,” Hakeem said. “That was the furthest thing from my mind. As a result of that, and a couple of other smaller things, I thought it was best to withdraw from promoting the legislation.”
Contact Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow on Twitter @AndySher1.