Tennessee open records advocates fear impact of court ruling

NASHVILLE - Transparency advocates are warning about the ramifications of a recent Tennessee appeals court ruling that "high government officials" can keep documents secret if they deem them part of their decision-making process.

The court upheld a lower court's ruling that then-Gov. Phil Bredesen's administration was justified in denying the release of records on the basis that they were part of the "deliberative process" about how to deal with demonstrators encamped in the state Capitol in 2005 to protest cuts to TennCare, the state's expanded Medicaid program.

The unanimous opinion written by Judge Richard Dinkins, whom Bredesen appointed in 2008, endorsed the argument that "advice high governmental officials receive be protected from disclosure" because those officials need to be able to speak freely and confidentially with trusted advisers.

Ben Cunningham, the founder and president of the Nashville Tea Party, called the ruling "an assault on open government (that) will invite abuse of power by any government official arrogant enough to consider themselves a 'high government official.'"

While previous legal rulings had acknowledged that an exemption might exist for records deemed deliberative, the Oct. 29 ruling for the first time explicitly applied it to a specific case, Tennessee Press Association attorney Rick Hollow said.

"That's the huge hurdle that we've just crossed," Hollow said. "The only question now becomes, how far does it extend?"

The opinion, which was joined by judges Patricia Cottrell and Frank Clement, extends to "those vested with the responsibility of developing and implementing law and public policy." But it doesn't specify which specific government positions are eligible.

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"Now that it has been recognized, every public official, starting at the lowest level and running to the top can say, 'Oh, you can't find out what was going on, that's part of the deliberative process privilege,'" Hollow said.

While the case applies directly to the state's rules of evidence in civil cases, Hollow said it would be "naive to the point of absurdity" to not expect the ruling to be applied to open records requests by citizens and the media.

In fact, the deliberative process privilege quickly became a mainstay of Republican Gov. Bill Haslam's administration after he succeeded Bredesen, a Democrat, in 2011. It has been used as the basis for denying information ranging from Haslam's email address to details of a much-hyped "top to bottom review" of state agencies.

When challenged about where state law authorizes the denial of public records based on deliberative privilege, Haslam's attorneys said the decision was based on common law, not on any of the more than 300 exemptions to the state's open records law.

The appeals court ruling came in a case filed on behalf of Karl Davidson, who had sued over the treatment of protesters during a Capitol sit-in over Bredesen's cuts to TennCare in 2005.

Frank Gibson, the founding director of the Tennessee Coalition on Open Government, said the decision is curious because the documents sought by Davidson could have been blocked under other exemptions such as lawyer-client privilege that are already on the books.

TCOG is a nonprofit alliance of citizen, professional and media groups, including The Associated Press, committed to promoting government transparency.

"This will provide another vague excuse for some government officials to abuse the records law despite language in there that the privilege should apply in specific and narrow circumstances," said Gibson, who now works as a lobbyist for the Tennessee Press Association.

The ruling also sets up potentially conflicting guidance on the state's open meetings law -- where secret deliberations among members of any panel requiring a quorum are explicitly forbidden in all but a few limited instances.

Cunningham, the Nashville Tea Party leader, said the ruling gives top government officials the legal backing to "operate without scrutiny."

"Such behavior by our elected officials will destroy public trust," he said. "On the contrary, the court should expect even more accountability from so-called high government officials."