1. Transparency in Government: Public Records Act & Open Meetings Act
Tennessee Government Finance Officers Association
March 16, 2018
Introduce JLP and REB
Today we are going to provide a little information about our office, the Public Records Act and the Open Meetings Act.
We’ll try to identify some current issues/challenges we are seeing with respect to public records and implementing public record policies.
Also address recent open records legislation, public records policies, and generally try to touch on the recent issues we are seeing. .
Lee Pope, Open Records Counsel
Rachel Buckley, Assistant Open Records Counsel

3. About the OORC Office of Open Records Counsel Created in 2008
Helps citizens and government officials better understand Tennessee’s laws on public records and open meetings.
Respond to questions and concerns
Educational outreach
Develop forms, schedules and policies for public record requests
Post resources on its website
The Tennessee General Assembly created the Office in 2008 under the purview of the Comptroller’s Office. Its goal is to help citizens and government officials better understand Tennessee’s laws on public records and open meetings.
The Office has a variety of responsibilities including:
Responding to questions and concerns from citizens, members of the media and government officials
Educational Outreach. The Office leads a variety of classes and seminars across the state each year.
Develops forms, schedules and policies for open record requests. This includes the Model Public Records Policy and Schedule of Reasonable Charges for copies of public records.
And the Office posts resources on its website.

4. Office of Open records Counsel
Policies and Guidelines
Best Practices
Model Public Records Policy
Schedule of Reasonable Charges
Charges for Frequent Requests
Safe Harbor Policy
Informal Advisory Opinions
Mediation of Records Disputes
Records Request Form, Records Response Form
Internet Forum Approval
May no longer provide informal advisory opinions

5. Office of Open records Counsel
Benefits of Utilizing OORC
Determination of “Willfulness”
No Attorney Fees
Schedule of Reasonable Charges
Charges Presumed Reasonable
Familiarity with Records/Meetings Issues
Neutral Intermediary
We’re FREE

6. Office of Open records Counsel
OORC Website
Great resource that contains our forms, policies & guidelines, TPRA & TOMA, OORC Opinions, Presentations
Now has a link to Public-Facing TPRA Exception Database and a copy of our TPRA Exception Report
Can submit inquiries online if you have a TPRA or TOMA question

7. Office of Open Records Counsel
You may be familiar with Ann Butterworth, our former Open Records Counsel.
Although Ann is no longer within the office of open records counsel, Ann is still with the Comptroller’s Office and she is the Comptroller’s Public Records Request Coordinator, which, as we’ll cover later, is the individual responsible under a new law passed last year for receiving public records requests and routing them to the appropriate records custodian.
Ann still assists Rachel and I as our consigliere.
Ann Butterworth, J.D.

8. Tennessee Public Records Act
Symbol 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).
Our office always tries to encourage transparency in government because the benefit of being transparent is that it helps your agency avoid any appearance of impropriety.

9. Tennessee Public Records Act
Tenn. Code Ann. §
All public records shall,
during business hours,
be open to inspection,
to any Tennessee citizen,
unless otherwise provided by state law.
Creates a presumption of openness!
Records are open to Tennessee citizens unless state law provides otherwise
503 is the heart of the TPRA
Creates a presumption of openness. Construed very broadly by courts in Tennessee. Must provide records unless state law provides otherwise.

10. Who Is Subject to the TPRA?
Government Entities
State, county and municipal records
Includes departments, divisions, boards and other separate units of government created by law or pursuant to law.
Tenn. Code Ann. § (a)(1).
“Functional Equivalent”
“When a private entity’s relationship with the government is so extensive that the entity serves as the functional equivalent of a government agency, the accountability created by public oversight should be preserved.”
Memphis Publ’g Co. v. Cherokee Children & Family Servs., Inc. 87 S.W.3d 67, 70 (Tenn. 2002).
Based on totality of the circumstances.
Level of government funding
Government involvement and control over entity
Whether entity created by legislative act or previously determined by law to be open to public access
Burden is on the petitioner
Municipal records are subject to inspection under the TPRA.
Records of private entities a municipality contracts with may also be subject to inspection if they are providing essential government services so as to be deemed a “functional equivalent.”
Recent case provides good analysis of functional equivalent Memphis Publ’g Co., v. City of Memphis, No. W –COA-R3-CV, 2017 WL (Tenn. Ct. App. July 26, 2017). Court determined national association of police chiefs agency hired to evaluate applicants for City of Memphis chief of police vacancy was not a functional equivalent subject to TPRA. Hinged on fact that no other state had ever found the organization to be subject to public records acts before.
FOIA does not apply to state government.

11. Who Can Access Records?
“Open for personal inspection by any citizen of Tennessee.”
Tenn. Code Ann. § (a)(2)(emphasis added).
May require presentation of photo ID that includes the person’s address or require alternative acceptable forms of ID.
Tenn. Code Ann. § (a)(7)(A)(vi).
Driver License
Student ID
Utility Bill
Proof of Property Ownership
Proof of citizenship is discretionary
Should be included in Public Records Policy
The TPRA provides that records are open to Tennessee citizens and that government entities may require proof of such citizenship.
As government entities across the state adopted their public records policies, we had a lot of questions about what are acceptable forms of proof of citizenship.
It’s really up to each government entity and should be something contemplated by each entity. We had a government entity ask if a juvenile could request records. There’s no age limit set forth in the TPRA, but certain juveniles aren’t going to have a license, so how can they prove citizenship?? Something to think about.
Just because the TPRA only grants the right of access to public records to Tennessee citizens doesn’t mean government entities can’t provide records to out-of-state requestors. It just means they can deny a request if it’s not from a TN citizen.
Proof of citizenship is discretionary and should be in the public records policy.

12. What is a “Public Record”?
Tenn. Code Ann. § (a)(1)(A)
Made or received pursuant to law or ordinance; or
In connection with the transaction of official business.
s, texts, tweets, Facebook posts
Video recordings/surveillance
Personnel records
Travel/leave information
Meeting agenda and minutes
Contract/bidding documents
Financial records
Does not include the actual device or equipment
Defined very broadly to include documents, papers, letter, photographs, electronic data processing files, sound recording and any 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
Doesn’t matter whether the record was created on a personal device or government issued device.
Types of public records created by your municipality. Does your municipality have a social media account? FB, Twitter, etc...?
Physical or electronic copies?
How to provide access to inspect electronic public records.
How to handle partial public records? Redaction practices?

13. “Unless otherwise provided by state law”
Exceptions to the TPRA
“Unless otherwise provided by state law”
Tenn. Code Ann. §
30+ Exceptions; 500+ elsewhere in Tennessee Code
“’State law’ includes statutes, the Tennessee Constitution, the common law, rules of court, and administrative rules and regulations.”
Tennessean v. Metro. Gov’t of Nashville and Davidson Cnty., 485 S.W.3d 857, (Tenn. 2016), citing Swift v. Campbell, 159 S.W.3d 565, (Tenn. 2004).
OORC Report on Statutory TPRA Exceptions
538 statutory exceptions identified in Tennessee Code
creates a presumption of openness and the tricky part when handling a record request is whether an exception applies to make the record or information within the record confidential??
Released report on statutory exceptions to the public records act on January 30, 2018.
Identified 538 exceptions contained in the Tennessee Code
Report is available on our website
Also have a public-facing database so you can search for exceptions – hope it will be a valuable resource so you can look to see if records can be disclosed or if information needs to be redacted.
Exceptions sometime make entire record confidential or just make portions of the record confidential.
Numerous exceptions to exceptions. – often records can be disclosed with consent or for transaction of official government business or law enforcement purposes or provided to courts.
Records can be confidential in the hands of one entity, but not another.
The tricky part with exceptions is that government agencies have an affirmative obligation to promptly provide public records, but also have an affirmative obligation to retain the confidentiality of certain records or information. The improper disclosure of some records even hold criminal penalties.

14. Exceptions to the TPRA Common Exceptions
Gov’t Employee Personnel Information
State Employee Performance Evaluations
Personally Identifying Information
Security/Surveillance of Gov’t Buildings
TBI Files
Juvenile Information/DCS Files
Medical Information – HIPAA
Student Information – FERPA
Proprietary Information/Trade Secrets
Former employees always want personnel files – Knoxville former employee example – accountant requesting financials
Performance evaluations only apply to state employees – TEAM Act
Personnel Info – Officers wanting address info removed from Register of Deeds and Property Assessors website.
“Personally Identifying Information”
SS#
DL#
Passport #
Employer or Taxpayer ID
Unique biometric data – fingerprints, retina images
Electronic ID #s that could lead to identity theft

15. Exceptions to the TPRA New Exceptions 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 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
About 8-10 exceptions created by GA each year.
This year it appears there are around 25 bills that create new exceptions to the TPRA.
Will release another Legislative Update at the conclusion of this session. Online database will be updated as well.

16. Financial Information
Exceptions to the TPRA
Financial Information
Tenn. Code Ann. § (f)(6)
Public employee bank account information held by Dept. of Treasury
Tenn. Code Ann. § (f)
Info provided to Dept. of Financial Institutions under Check Cashing Act
Tenn. Code Ann. §
Bank examinations by Dept. of Financial Institutions
Tenn. Code Ann. § (b)
Audited balance sheets of cemeteries attached to petition to no longer contribute to the improvement care trust fund
Tenn. Code Ann. §
Records related to suspected financial exploitation of an adult
Tenn. Code Ann. § (m)
Financial records submitted as part of application for property tax relief
Sure most are aware that audit working papers are confidential, but there are many other random exceptions related to various financial documents submitted to state and local government.

17. Basic TPRA Analysis Tennessee Citizen? (if required)
Government Entity or Functional Equivalent?
Public Record?
Do Responsive Records Exist?
Request for records vs. information
Sufficient description to identify records?
Does an Exception Apply?
Entire record or information within the record?
Exception to an Exception?
Governmental entities are not required to sort through files to compile information or to create or recreate a record that does not exist.

18. Public Records Policy Tenn. Code Ann. § 10-7-503(g)
Every Gov’t Entity must have a policy that includes:
Process for making requests, including any required forms;
Process for responding to requests;
Statement of fees and billing/payment procedures; and
Contact information for the Public Records Request Coordinator (“PRRC”).
OORC Model Policy released January 2017
As of July 1, 2017, every gov’t entity subject to the TPRA must have a pubic records policy containing the following items.
We are still seeing some policies that improperly charge for records, require forms for inspection, do not identify a PRRC.
TCOG is auditing local gov’t public record policies

19. Receiving TPRA Requests
Tenn. Code Ann. § (a)(7)
Requests for only inspection do not have to be in writing and may be made:
In person, telephone, fax, mail, (if used) or internet portal (if used).
Requests for copies can be required to be in writing or on a form developed by OORC and may be made:
In person, mail, (if used) or internet portal (if used).
Any required forms should be included in policy and must be made readily available to requestors
Effective July 1, 2017, TPRA now specifies how gov’t entities must receive public record requests.
Methods of receiving requests varies based upon whether an individual merely wants to view records or whether they want to inspect records.
This law mandating the methods to receive requests went into effect on July 1, 2017, which is the same date all entities had to have a public records policy in place. We amended our model policy in August, but state agencies and other government agencies probably have not updated their policies.

20. Receiving TPRA Requests
Inspection vs. Copies
Requests for only inspection:
Cannot require the request to be in writing
Cannot assess a charge (even for labor)
Requests for copies:
Can require to be in writing or on a form
Can charge reasonable costs incurred to produce the requested records

21. Responding to TPRA Requests
Tenn. Code Ann. § (a)(2)(B)
Shall promptly make records available
If not practicable to make promptly available, must do one of the following within 7 business days:
Make the information available;
Deny the request in writing with the basis for denial; or
Furnish a completed record request response stating the time reasonably necessary to produce the records or information.
Failure to respond as indicated above = denial
Issues we are seeing:
Government entities not responding to requests in 7 days or not responding at all.
Providing the proper basis for denial.
Whether they have to furnish a response on our particular response form if they need additional time

22. Charging for Public Records
OORC Schedule of Reasonable Charges
Schedule sets forth reasonable charges for copies and labor
Can charge for copies and labor
$.15 per page/$.50 per page for color
Use lowest possible labor
One hour labor threshold
Can charge for redaction of copies
Can only charge for labor related to providing electronic copies unless physical copies are printed
Must provide estimate of costs
Cannot charge if only inspecting records

23. Public Records Policy Recent Policy Issues
Requiring forms for inspection
Not including forms
Improper charges/fees
Charging for redaction under 504(a)(20)(C) for utilities
Charging for labor re electronic copies
No contact information for PRRC
Mandating submission of request to PRRC
Improper response times – Prompt requirement
Using personal equipment to make copies
What rules are “reasonable” under ?
Application of exceptions
Forms of ID for citizenship
TCOG is auditing gov’t public record policies to check for compliance and trends.

24. Tenn. Code Ann. § 10-7-503(a)(7)(A)(vii)
TPRA Penalties
Tenn. Code Ann. § (a)(7)(A)(vii)
Failure to Inspect
2 or more requests to inspect in 6 months
Fails to view records within 15 days of being notified that records are available to view
No TPRA requests for 6 months, unless failure to view was for “good cause.”
Failure to Pay for Copies
Government entity provides estimate of costs
Requestor agrees to pay estimated costs
Requestor fails to pay for copies after they are produced
No more TPRA requests until requestor pays costs
2 new penalty provision were added last year as part of the legislation adding the methods government entities must receive records.

25. Petitioning For Access
Tenn. Code Ann. §
Denial Required
Failure to respond in accordance with 503 = denial
Imposition of unreasonable fee = denial
Petition filed in chancery or circuit court
Burden is on governmental entity to prove denial was justified
Court orders access to records and may impose attorney’s fees if it finds denial was “willful.”
“[T]he governmental entity, or agent thereof, refusing to disclose a record, knew that such record was public and willfully refused to disclose it.” Tenn. Code Ann. § (g)(emphasis added).

26. Petitioning For Access
Evolution of “Willfulness”
“Bad Faith” Standard
“Willfully” described as synonymous with “Bad Faith.” Schneider v. City of Jackson, 226 S.W.3d 332, 346 (Tenn. 2007).
“City acted consciously to withhold the records with a dishonest purpose.” Little v. City of Chattanooga, No. E COA-R3-CV, 2012 WL , *15 (Tenn. Ct. App. 2012).
Recent Shift to Legal Justification
“The analysis focuses on the legal validity of the position of the government entity” Friedmann v. Marshall County, 471 S.W.3d 427, 439 (Tenn. Ct. App. 2015).
“[I]f a municipality denies access to records by invoking a legal position that is not supported by existing law or by a good faith argument for the modification of existing law, the circumstances of the case will likely warrant a finding of willfulness.” Clarke v. City of Memphis, 473 S.W.3d 285, 290 (Tenn. Ct. App. 2015).
Taylor v. Town of Lynnville, No. M COA-R3-CV, 2017 WL (Tenn. Ct. App. 2017)
Varying interpretations of “willfulness”
Friedman rejected position that Supreme Court in Schneider adopted a “bad faith” standard. Looked at 505(g) about guidance and advice provided by OORC and interpreted willfulness as focusing on the legal justification.
Clarke case reiterated understanding of willfulness as being the legal justification and tried to provide a framework for the analysis. Clarke framework recently followed by court of appeals in Taylor v. Town of Lynnville.

27. Tenn. Code Ann. § 10-7-503(a)(7)(A)(vii)
Records Retention
Tenn. Code Ann. § (a)(7)(A)(vii)
Municipal Records – MTAS
Tenn. Code Ann. § authorizes the Municipal Technical Advisory Service to compile and print a records retention manual for municipalities.
County Records - CTAS
Tenn. Code Ann. § authorizes the County Technical Assistance Service to compile and print a records retention manual for counties.
retention-schedules
2 new penalty provision were added last year as part of the legislation adding the methods government entities must receive records.

28. Tennessee Open Meetings Act
Tenn. Code Ann. §
The formation of public policy and decisions is public business and shall not be conducted in secret.
Construed broadly in favor of the public.
Provides the right to attend, not the right to participate.
Applies to all “meetings” of any “governing body.”
Utility customer that wanted to participate example.

29. Tennessee Open Meetings Act
What is a meeting of a governing body?
“Governing Body”
Members of a public body of 2 or more members with authority to make decisions for or recommendations to a public body on policy or administration.
Includes certain non-profits
“Meeting”
Convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision.
Doesn’t include executive sessions or workshops
Utilities created under the Utility District Law of 1937 are municipalities subject to TOMA.
Generally should not convene outside of a public meeting to make any decisions or to deliberate towards any decisions.
“Deliberation” means to examine and consult in order to form an opinion or to weigh arguments for or against a proposed course of action. Neese, 813 S.W.2d at 435; Johnston, 320 S.W.3d at 311.
- Includes s
Generally avoid an appearance of impropriety. - Executive session before regular meeting or after. After looks much better.

30. Tennessee Open Meetings Act
TOMA Requirements
“Meetings” must be open to the public
“Adequate Public Notice”
Meeting Minutes
Persons present
Motions, proposals and resolutions offered
Results of any votes
All votes by public vote, public ballot or public roll call

31. Tennessee Open Meetings Act
“Adequate Public Notice”
Not defined in TOMA
Depends on the totality of the circumstances
Sufficient if:
Gives interested citizens a reasonable opportunity to exercise their right to attend.
Content of the notice should reasonably describe proposed actions or decisions
TOMA does not require agenda to be included as part of notice, but advisable for specially called meetings.
“Public body” – created by some legislative act or by some governing body
Making decisions or recommendations to another public body – doesn’t include the dean’s advisory committee or governor’s advisory committee.
Is it actually a “meeting”? – executive sessions, informational sessions – as long as there is no discussion or deliberation
Generally avoid an appearance of impropriety. - Executive session before regular meeting or after. After looks much better.

32. Tennessee Open Meetings Act
“Executive Sessions”
Meeting with Attorney
Informational Sessions/Workshops
Hospital Boards
School Safety Planning
Government Audit Committees
Attorney meetings and informational workshops are fine so long as there is no discussion or deliberation amongst members of the governing body.
Cannot vote on anything during an executive session – TCA (b) – votes must be public vote at an open public meeting.

33. Tennessee Open Meetings Act
TOMA OOPS!
What if a governing body violates TOMA?
Any action taken in violation of TOMA is null and void, except commitments affecting public debt.
Tenn. Code Ann. §
Court has broad jurisdiction to issue injunctions, impose penalties and otherwise enforce purpose of TOMA.
Tenn. Code Ann. §
Court retains jurisdiction and governing body must report to the court semi-annually re TOMA compliance
Governing body can ratify conduct outside of a publicly-held meeting if there is full discussion of issues at a properly called meeting, but don’t recommend

34. Lee Pope or Rachel Buckley Office of Open Records Counsel
Contact Information
Lee Pope or Rachel Buckley
Office of Open Records Counsel
(615)