Office of Open Records Counsel TN PRIMA November 1, 2017 Transparency in Government: Tennessee Public Records Act and Open Meetings Act Office of Open Records Counsel TN PRIMA November 1, 2017 Brief overview of TPRA and TOMA As with audits of government finances to ensure financial accountability, the TPRA and TOMA promote transparency in gov’t so citizens are aware of what is happening in their towns, counties and state level affairs.

Office of Open Records Counsel (OORC) Answer questions and provide information to public officials and the public regarding public records and open meetings. Collect data on open meetings inquiries and problems. Provide educational outreach Issue informal advisory opinions Mediate records disputes Develop forms, guidelines and policies Tenn. Code Ann. §§ 8-4-601, 8-4-603 Established in 2008, PC 1179. – Originally Ombudsmen *State officials are still required to consult with the AG for TPRA and TOMA “opinions” Report to General Assembly in conjunction with ACOG on open meetings issues. What We Don’t Do: not a clearinghouse for public records. TCA Section 8-4-602: Advisory Committee on Open Government

Policies and Guidelines Developed by the OORC Best Practices & Guidelines Model Public Records Policy Schedule of Reasonable Charges Charges for Frequent and Multiple Requests Safe Harbor Policy Informal Advisory Opinions Mediation of Open Records Issues Records Request Form & Records Response Form Tenn. Code Ann. §§ 8-4-601 Recently updated - effective January 20, 2017 Model Policy, Informal Advisory Opinion and Mediation policies are new

Benefits of OORC Willfulness. Tenn. Code Ann. § 10-7-505(g). Costs for copies should be assessed in accordance with Schedule of Reasonable Charges. Tenn. Code Ann. § 10-7-503(a)(7)(C). Costs presumed reasonable. Tenn. Code Ann. §§ 8-4-604,10-7-503. Taylor v. Town of Lynnville, No. M2016-01393-COA-R3-CV, 2017 WL 2984194 (Tenn. Ct. App. May 16, 2017) Why do you care about OORC policies, forms, guidelines, etc..? Legal Implications! Courts may consider guidance provided by OORC in determining whether a denial was willful. Costs for records should be imposed in accordance with the Schedule of Reasonable Costs Costs imposed pursuant to the Schedule are presumed reasonable.

http://www.comptroller.tn.gov/openrecords/ Great Resource: Forms, Policies & Guidelines TPRA, TOMA Laws OORC Opinions Presentations Annual Report – just released March 1st

Tennessee Public Records Act Tennessee Public Records Act, 1957 (TPRA) (T.C.A. § 10-7-501 et seq.) Facilitate the public’s access to government records Swift v. Campbell (Tn Ct App 2004) Memphis Publishing Co. v. Memphis (Tenn. 1994)

Public Policy of Transparency “Facilitating access to governmental records promotes public awareness and knowledge of governmental actions and encourages governmental officials and agencies to remain accountable to the citizens of Tennessee.” Schneider v. City of Jackson, 226 S.W.3d 332, 339 (Tenn. 2007). Why do we have TPRA and TOMA -> Symbols of the state’s public policy of transparency Advantageous to gov’t clients because it shows we are not conspiring or engaging in suspect activities -> citizens that always think gov’t is up to something – attending all meetings of gover ning body or requesting records of gov’t agency. DA story about releasing investigation of officer involved shooting. -> of course this presupposes your clients are not engaging in any nefarious activities, but we will give them the benefit of the doubt.

All state, county and municipal records shall at all times, during business hours, be open for personal inspection by any citizen of Tennessee, and those in charge of such records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law. Creates presumption that all public records are open unless otherwise provided by law. Direction to courts in 10-7-505 to construe Act “give fullest possible access to public records” T.C.A. § 10-7-504 provides a non-exhaustive list of records and/or information that are not open for public inspection. There are more than 350 exceptions. Tenn. Code Ann. § 10-7-503(a)(2)(A)

Presumption of Openness Provisions of the TPRA are interpreted broadly so as to give the fullest possible public access to public records. Tenn. Code Ann. § 10-7-505(d). TPRA expresses a clear legislative mandate favoring disclosure of government records. State v. Cawood, 134 S.W.3d 159, 164-5 (Tenn. 2004). TPRA is a “legislative attempt to cover all printed matter created or received by government in its official capacity.” Griffin v. City of Knoxville, 821 S.W.2d 921, 923 (Tenn. 1991). Unless there is an express exemption within the law, disclosure is required “even in the face of serious countervailing considerations.” Memphis Publ’g Co. v. City of Memphis, 871 S.W.2d 681, 684 (Tenn. 1994).

Who Can Access Government Records under the TPRA? Tenn. Code Ann.§ 10-7-503(a)(2)(A) grants access to public records to “any citizen.” DISCRETIONARY: A records custodian may deny a request to inspect and/or copy public records from a non-citizen pursuant to Tenn. Code Ann. § 10-7-503(a)(7)(A). In Tennessee, citizen does include a convicted felon. Cole v. Campbell, 968 S.W. 2d 274 (Tenn. 1998). Doesn’t mean people from outside TN can never get records under the TPRA, just means they may be denied access.

What is a Public Record? All documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings, or other material, regardless of physical form or characteristics Made or received pursuant to law or ordinance, or in connection with the transaction of official business By any governmental entity Tenn. Code Ann. § 10-7-503(a)(1)(A). Broadly defined Includes Tweets, Facebook posts, etc.. Doesn’t include the device or equipment. (cell phone, computer or other electronic or mechanical device or equipment) Business vs. Personal distinction.

Examples of Public Records 1. Personnel records/applications and references 2. Travel and leave information for employees 3. Emails, text messages, and voicemails 4. Published financial or performance audits 5. Meeting agendas and minutes (and notes) 6. Contracts – RFPs/RFQs 7. Financial statements and accounting records 8. Citizen and constituent communications 9. Budgets 10. Video recordings/surveillance Sometimes access depend upon timing. Public records are public whether in a draft form or a finalized version, unless a specific exemption exits.

Whose Records are Accessible? Any “Governmental Entity" State, county or municipal level (not federal); and Any department, division, board, bureau, commission, or other separate unit of government created by law or pursuant to law. “Functional Equivalent” Tenn. Code Ann. § 10-7-503(a)(1).

“Unless otherwise provided by state law” Tenn. Code Ann. § 10-7-504 provides a list of records and/or information that are not open for public inspection; however this list is not exhaustive. Approx. 30 subsections More than 500 exceptions to the TPRA are found in the following : Tennessee Code Annotated Tennessee Rules of Civil and Criminal Procedure Administrative Law Rules Rules of Court Common Law Federal Law Report for Lt. Gov. and Speaker of the House. OORC Exception Database. Lots of Grey Areas

Common Exceptions Personnel Files Education & State Employee Performance Evaluations Personally Identifying Information Security/Surveillance of Government Buildings TBI Files DCS Files/Juvenile Information AG Files Medical Records/HIPPA RFPs/RFQs On average, 8-10 exemptions created every year.

New Exceptions for 2017 2017 OORC Legislative Update Identity of vendor providing goods and services used to protect electronic information processing systems, if governing body votes to make confidential. – Public Chapter 114 State Park Guest Information – Public Chapter 125 Body Camera Video in health facility, interior of home that’s not a crime scene or of minors at a K-12 school. – Public Chapter 255 TBI Investigation of Officer Involved Shootings open after investigation and prosecution complete – Public Chapter 114 Minor Victims of Criminal Offenses – Public Chapter 308

Duty to Redact Information made confidential shall be redacted whenever possible. Tenn. Code Ann. § 10-7-503(a)(5). Potential liability for failure to redact Generally have to intentionally or knowingly release confidential information.

Basic TPRA Analysis Citizen? (if required) “Government Agency” or Functional Equivalent? “Public Record”? Do Responsive Records Exist? Request for Records vs. Information Not required to compile information Sufficient Description to ID records? Does an Exception Apply? Entire record or portions of the record? Exception to an Exception? Sufficiently detailed request and Jakes v. Sumner County BOE case

Response to a TPRA Request PROMPTLY- Tenn. Code Ann. §10-7-503(a)(2)(B) requires it! If cannot be promptly available, within seven (7) business days must: Provide access to the record (whether inspection or duplication); Deny in writing with legal basis for denial; or Indicate in writing the additional time necessary to produce the record. Failure to respond in one of these methods constitutes a denial that is actionable Supposed to indicate in writing on a form developed by our office – courts appear to allow a substantially similar form/letter. “Promptness” – Jakes case and telling him she couldn’t provide right away was okay. Metro Nashville decision out of COA with 3-4 day waiting period = violation of TPRA.

Inspection vs. Copies Request for Inspection Request for Copies Cannot require request to be in writing Cannot assess a charge (even for labor) Utilities can charge for redaction of “private records” under 504(a)(20). Request for Copies Can require in writing or on form developed by OORC Can charge for copies and labor per Schedule of Reasonable Charges Can charge for redaction of copies Must provide an estimate of the reasonable cost for producing the requested records.

Public Records Policy Must include: Process for making requests, including any required forms; Process for responding to requests; Statement of fees and billing/payment procedures; and Contact info for Public Record Request Coordinator (“PRRC”) Must be adopted by July 1, 2017 Tenn. Code Ann. §10-7-503(g). Need to be familiar with policy in case you receive a public record request – will most likely need to forward request to PRRC – may be general counsel, may be another individual. New updated policy – methods for receiving requests for copies and requests for inspection New Penalties for failure to inspect records and failure to pay for copies.

Petitioning for Access to Public Records. Denial Required: Tenn. Code Ann. § 10-7-505 allows a citizen to petition the court if his/her request has in whole or in part been denied. Failure to respond to the request as described in subdivision (a)(2) shall constitute a denial. Tenn. Code Ann. § 10-7-503(a)(3). Little v. City of Chattanooga, No. E2011-027-24-COA-R3-CV, 2012 WL 4358174 (Tenn. Ct. App. Sept. 25, 2012): 6 requests with emails between City and Requestor, but no response in accordance with 503(a)(2)(B). “The City clearly did not respond to the request of Little as described in subdivision (a)(2). Thus, the actions of the City ‘constitute[d] a denial’ of access to the City records requested.” Action only arises if request has been “in whole or in part denied” must have a denial of access Imposition of upfront fee for inspection of records constitutes denial – Taylor v. Town of Lynnville

Petitioning for Access to Public Records The petition is to be filed in either chancery court, circuit court, or any other court in the county having equity jurisdiction. For state level records, the petition is to be filed in either chancery or circuit court of Davidson County. For local government records, the petition is to be filed in either chancery or circuit court in the county where the records are located. Burden is on the records custodian to prove by a preponderance of the evidence that there is a provision within state law that authorizes the nondisclosure of the requested record(s). Upon ruling on the petition the court must issue findings of fact and conclusions of law and have the power to exercise full injunctive remedies and relief so as to carry out the purpose and intent of the TPRA.

“Willfulness” TN Supreme Court observed that “Willfully” has been described as synonymous with “Bad Faith” – Schneider v. City of Jackson, 226 S.W.3d 332, 346 (Tenn. 2007). In Little, Court of Appeals applied bad faith standard. “City acted consciously to withhold the records with a dishonest purpose.” 2012 WL 4358174 at *15. More recently, Court of Appeals looked at the legal justification cited by the records custodian to refuse access to the records. Friedmann v. Marshall County, 471 S.W.3d 427, 439 (Tenn. Ct. App. 2015). – interpreted from guidance by OORC language in 505(g) “The analysis focuses on the legal validity of the position of the gov’t entity” Taylor v. Town of Lynnville – Court of Appeals affirms willfulness should focus on legal justification – Advice from OORC

Records Retention and Disposition Tenn. Code Ann. § 10-7-702 authorizes the Municipal Technical Advisory Service to compile and print a records retention manual for municipalities. http://mtasresource.mtas.tennessee.edu/reference/retention- schedules (Entire Retention Schedule) http://mtasresource.mtas.tennessee.edu/reference/finance- records (Finance Records Schedule) Municipalities are to use the manual as a guide in establishing their retention schedules. TCA7-82-301(a)(1)(A) From and after the date of the making and filing of an order of incorporation, the district so incorporated shall be a “municipality” or public corporation in perpetuity under its corporate name, and the district shall in that name be a body politic and corporate with power of perpetual succession, but without any power to levy or collect taxes.

Records Retention and Disposition (cont.) Tenn. Code Ann. § 10-7-404 authorizes the County Technical Assistance Service to compile and print a records retention manual for counties. http://eli.ctas.tennessee.edu/reference/current-retention- schedules (Entire Retention Schedule) http://eli.ctas.tennessee.edu/reference/accounting-purchasing- and-other-miscellaneous-records (Accounting, Purchasing and Other Miscellaneous Records Schedule) Counties are to use the manual as a guide in establishing their retention schedules.

Tennessee Open Meetings Act Tennessee Open Meetings Act, 1974 (TOMA) (Tenn. Code Ann. § 8-44-101 et seq.)

Public Policy of Public Business The formation of public policy and decisions is public business and shall not be conducted in secret. Tenn. Code Ann. § 8-44-101

TOMA Construed broadly in favor of the public; Provides the right to attend and observe; and Does not guarantee the right to participate in or speak at meetings. Other provisions in law may require public participation. See Souder v. Health Partners, Inc., 997 S.W.2d 140 (Tenn. Ct. App. 1998). Utility Customer Example

What Meetings are Open? All “meetings” of any “governing body” are declared to be public meetings open to the public at all times, except as provided by the Constitution of Tennessee. Tenn. Code Ann. § 8-44-102(a) Applies to every meeting of a governing body except where statutory exclusion exists.

TOMA Definitions “Governing body”: “Meeting”: two (2) or more members authority to make decisions for or recommendations to a public body on policy or administration “Meeting”: Convening/gathering of a governing body of a public body Quorum is required (either to make or to deliberate toward a decision) on any matter. Tenn. Code Ann. § 8-44-102 Public body – created by legislative act with authority to make decisions or recommendations to a public body (not individual) Special Advisory Board to a single person such as mayor, college dean or governor – not “public body” Special sections for board of directors of non-profits

“Adequate Public Notice” Not defined Facts and circumstances, not a single formula. Timing: deemed sufficient if “interested citizens” are given reasonable opportunity to exercise right to be present (not to participate) at meeting. Content: must reasonably describe proposed actions or decisions. “[A]dequate public notice means adequate public notice under the circumstances, or such notice based on the totality of the circumstances as would fairly inform the public.” Memphis Pub. Co. v. City of Memphis, 513 S.W. 2d 511, 513 (Tenn. 1974). Notice timing: notice is deemed sufficient if “interested citizens” are given reasonable opportunity to exercise right to be present at meeting.

TOMA Key Issues “Adequate Public Notice” “Executive Sessions” Meeting Minutes Secret Votes Electronic Participation Remedy for Violations Notice sufficient to give interested citizens a reasonable opportunity to exercise their right to attend Executive: 68-11-238 (hospital boards) 49-6-804 (school safety plans) 9-3-405 (gov’t audit committees)

TOMA OOPS Remedial nature: Action taken is void and of no effect; nullification of action rather than penal remedy. Commitments affecting public debt that are otherwise legal not nullified or voided. No distinction between technical and substantive violations of TOMA. Tenn. Code Ann. § 8-44-105 Can ratify otherwise violative conduct if substantial reconsideration of matter at a public meeting.

Analyzing Your Agency’s Transparency Needs (cont.) Review meeting minutes Reach out to governing body members and staff to determine how they have been conducting meetings. Are meetings regular or special called? Is electronic participation appropriate and authorized by governing body? Strictly comply with statute When “necessity,” file notice with Secretary of State’s Office pursuant to Tenn. Code Ann. § 8-44-108(b)(3).

The Dangers of Email Avoid the “email trap”: group emails to board members for convenience Absolutely no voting by email. Johnston V. Metropolitan Government of Nashville and Davidson County, 320 S.W.3d 299 (Tenn. Ct. App 2009) E-mails did not constitute a meeting under Tenn. Code Ann. § 8-44-102(b)(2). However, the emails were electronic communication used to deliberate public business in violation of Tenn. Code Ann. § 8-44-102(c). Emails to Board members for information only. Best practice is to send to members as bcc and not “facilitate” discussion.

Rachel Buckley or Lee Pope OORC Contact Information If you have questions regarding the TPRA, the TOMA, or the Office of Open Records Counsel, contact (615) 401-7891 or (866) 831-3750 Rachel Buckley or Lee Pope open.records@cot.tn.gov http://www.comptroller.tn.gov/openrecords/