Tennessee Governor Phil Bredesen is expected to sign into law a recently passed bill that would provide a much-needed overhaul of the state's open records practices. The bill, SB3280, corrects a number of deficiencies in the current Tennessee Open Records Act.
Key provisions of the bill include:
- A clarification and expansion of the definition of "open records" and "state records." The new law would explicitly encompass all state records unless they fall within a specific exemption.
- A requirement that the Office of Open Records establish a schedule of reasonable charges that records custodians will use as a guideline when determining how much to charge citizens for copies of public records.
- A requirement that open records requests must be fulfilled or denied a within seven days, which accords with the average time limit in other states' open records laws. Previously there was no set time period for responses to records requests.
- A requirement that all denials must be accompanied by a description of the "basis for denial." Previously custodians did not need to note why the request had been denied. An earlier version of the bill had an even better "legal exemption" requirement - which would have mandated that custodians cite the specific provision that warrants the denial - but this was changed through amendment.
- The Creation of the Office of Open Records Counsel, which will handle open records issues for local government.
- A number of minor changes to the state open meetings law, including a provision that allows prevailing plaintiffs in lawsuits concerning violations to recover reasonable attorneys' fees.
Sadly, one of the more promising provisions did not survive the legislative process. The original version of the bill would have allowed "any citizen" to request records. Later amendments reverted this provision to its original form, which affords the privilege to Tennessee citizens alone. While some states restrict requests to their own citizens - Virginia, for example - most do not. See the CMLP Legal Guide section on Access to Records from State Government for more information.
Such restrictions on access evince a myopic view of the types of citizens who will and should be able to request records. The Tennessee open records law could pose a problem for citizens of other states with roots or family members in Tennessee, or for individuals who live in Tennessee but who have not yet become "citizens of the state." This is complicated by the fact that neither the bill nor the Tennessee Code as a whole defines what a "citizen of Tennessee" is. These concerns are ameliorated to some extent by a provision that requires citizens to provide identification only when the requested record "involves personal security by the entity or official retrieving such record." Additionally, there is nothing to prevent non-citizens from asking a Tennessee citizen to place a request for them.
This concern aside, the bill promises to greatly improve citizens' ability to obtain Tennessee records and information if it comes into force. Under Tennessee law, Governor Bredesen has 10 days from receipt of the bill to sign or veto it; if he does neither, the bill will become law without signature.
(Matt C. Sanchez is a second-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)