Better Government Association

Update fixes some problems in law, but more must be done

By FRANK GIBSON

June 3, 2008

Post a CommentRecommend Print this page E-mail this article Share this article: Del.icio.us Facebook Digg Reddit Newsvine What’s this? Laws in other states speak to the principle of "representative government being dependent upon an informed electorate." They say "all persons are entitled to the greatest possible information regarding the affairs of government," and add that providing information is an "essential function and integral part of the routine duties of public officers and employees."

Tennessee law is not as straightforward. Its constitution says all power "is inherent in the people" and makes the press "free to every person to examine" the affairs of government.

Tennesseans have reason to be pleased with the General Assembly's update of the open-records law. Their rights will be spelled out more clearly because of legislation sponsored by Sens. Randy McNally and Joe Haynes and Rep. Steve McDaniel.

An Office of Open Records Counsel will help citizens understand and navigate the law, thanks to Gov. Phil Bredesen, Comptroller John Morgan and city and county associations.

The improvements represent the first real progress in a quarter century. We've known about deficiencies for years, but problems were not documented until a 2004 statewide open-records audit showed a compliance rate below 67 percent.

In 2002, the Chicago-based Better Government Association and a national journalist group rated our law fourth-worst in the country, based strictly on difficulty of use.

The law states records are open for "personal" inspection "during business hours" unless made confidential by law. You have a right to get copies and the government can adopt "reasonable rules" on providing copies, but "reasonable" was never defined.

The law did nothing to check arbitrary and politically motivated decisions of some officials to charge outrageous fees to protect themselves from perceived enemies and the media.

The law had no deadline for the government to respond. The only appeal was to go to court. The government didn't have to give a reason for denying or delaying a request until a challenge got before the judge. If the court found you were right, there was no guarantee of getting costs reimbursed, and no penalties for violations.

Changes will fix some of the problems and others, including defining "reasonable" fees, will be left for the ORC and an advisory committee of citizens, media and government representatives. Records are to be made available "promptly." The government has seven business days to cite a specific legal basis for denying a record or to explain any delay. The records custodian can charge "actual cost" to produce records, if the request takes more than five hours.

The BGA estimates the changes already made would push our score to 10th highest, but it may be premature to say these changes will fix everything that hinders public access