Open Government

Friday, September 15, 2006

I get calls regularly from citizens and reporters with open government questions, but this one threw me. The AP reporter wanted my reaction to statements an assistant state attorney general made at the National Conference of State Legislatures.

Janet Kleinfelter, "senior counsel" in the AG's office, had told NCSL attendees that the press drives government underground when it asks for too many public records.

"The response is to quit doing things in writing," said Kleinfelter. "Everything starts getting done orally. You start having everything done by telephone."

People stop writing emails and writing down what is said in meetings, she said. "When we get sued…, there's no record, there's no history for us to go to, for lawyers to go to to say 'Here's why we did this. Here's why we did that.'"

What an indictment of public officials. I was struck by no mention of problems citizens might have getting public information. This is somehow the fault of reporters?

It seemed the finger was being pointed in the wrong direction. It was really about openness being such a pain in the butt for people in government.

When Tennessee lawmakers got email, the Attorney General advised them not to write anything they wouldn't want to see on a billboard on West End. They apparently don't have to be as careful these days because the AG has assured them the law doesn't apply to them.

Tennessee law says state and local records "made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency" are public unless specifically exempt by law. The legislature has exempted more than 230 sets of records.

The Attorney General told a Nashville judge last year that the legislature removed itself from the definition of "governmental agency" in 2001, thus sexual harassment complaints are confidential. Kleinfelter told NCSL sexual harassment complaints ought to be confidential as a matter of privacy for the accuser and the accused.

Governor Bredesen said he felt that way until he saw a spike in complaints by state workers after they were told their reports would be open. He put aside requesting that the legislature close them, asking the news media to voluntarily withhold victims' names unless it is necessary to use them.

When legislators make information confidential they often make it a crime to divulge any of it. Such an exception would allow whistleblowers to be intimidated, so which is the better deterrent, threat of exposure or the promise of eternal confidentiality?

Kleinfelter thinks too much openness hurts government. "Lawmakers and policymakers get worried about making 'out of the box' suggestions on difficult topics because they fear their ideas will be printed in the newspaper the next day," the AP quoted Kleinfelter as saying.

It is the deal making that worries the public. Take Elizabethton, where 79% of the voters removed two school board members Aug. 3 over an alleged "Sunshine Law" violation. The meeting was 300 miles away, on a Sunday night, in the Opryland Hotel, and the board hired a new schools director.

Parents in the Elizabethton didn't want to sue the school board because, as taxpayers, they didn't think they should pay extra to get a state law enforced. They would be paying their lawyer and indirectly the board's attorneys. That scenario is what caused two reputable national organizations to rank our open government laws 45th in the country. To get anything the government doesn't want them to see, citizens must sue.

Attorneys in a public records lawsuit in Chattanooga remember General Kleinfelter showing up to defend the constitutionality of the law and telling the federal judge that she personally didn't like the law but had to defend it because it was her job.

The AG once said the City of Bells could ban citizens from videotaping council meetings for broadcast on local cable. The AG rescinded that opinion.

It once opined the Unicoi County economic development board could hold all its meetings in private, but took that one back upon being informed the board agreed to abide by the "Sunshine Law" to get state money. Talk about bait and switch.

The Attorney General is selected by the Tennessee Supreme Court. That body rejected arguments 30 years ago that our "Sunshine Law" was unconstitutional by noting that open government is inherent in the Tennessee Constitution's freedom of speech and freedom of press clause. The justices added: "The evil of closed door operation of government without permitting public scrutiny and participation is what the law seeks to prohibit."

Fortunately, Kleinfelter didn't tell our NCSL visitors that one state attorney's solution to keeping records secret was to shred them -- a crime in other states.

The state's highest court is in the process of selecting a new Attorney General. It might be time for the court or someone to ask applicants how they feel about open government and what they would do to uphold the court's mandates.

Justice Cornelia Clark told a Tennessee Municipal League crowd recently that it makes more sense to comply with open government laws than to resist. She reasoned that it takes less time, less energy and other resources than defending a lawsuit.

The ousted Elizabethton school board members might agree.

Frank Gibson is executive director of the Tennessee Coalition for Open Government. He can be reached at