Open records aren't always seen by public

Saturday, March 10, 2007

NASHVILLE (AP) -- If a local or state official in Tennessee refuses to release a public document, the only recourse is to file an expensive civil lawsuit.

But there are some efforts to change that this year.

Gov. Phil Bredesen has said he will put money in the budget to create an open records ombudsman, someone to help people who are refused access to public records.

There was also a legislative effort to create fines for public officials who willfully closed public meetings or withheld public documents, but that idea is stuck in a study commission that won't make recommendations until 2008.

"It's a $500 fine to throw a soft drink can out the window if you get caught, but there's no fine for denying obvious public records to a citizen, no fine for having secret meetings," said Frank Gibson, executive director of the Tennessee Coalition for Open Government.

"If there's no penalty, there's no determent value in the law."

The Associated Press found similar conditions in all 50 states in a survey conducted to coincide with Sunshine Week, a nationwide effort to draw attention to the public's right to know.

Laws are sporadically enforced, penalties for failure to comply are mild and violators almost always walk away with nothing more than a reprimand, the AP found.

A 2004 audit in Tennessee by reporters, college students and volunteers found that government agencies denied access to public records about a third of the time. Gibson said often government officials simply don't know the law.

The audit showed that about 40 percent of Tennessee sheriffs said an arrest report is not a public record -- even though the law specifies it should be open to the public.

The open government group counted 115 alleged open meeting violations between January 2003 and October 2005, including an average of one a week for the first 10 months of last year.

In the last General Assembly, lawmakers set up a panel to study overhauling the state's open government laws and issue a report. The study group was supposed to make a final report last month, but voted late last year to delay its recommendations until 2008.

The committee was created as a compromise after county and city officials opposed the first significant proposal to change the state's "Sunshine in Government" laws since they were created in 1974 in the aftermath of the Watergate scandal.

State Sen. Randy McNally, R-Oak Ridge, the committee's chairman, said a bill is moving through the legislature that would extend the committee's deadline and he hopes to avoid any more delays.

"The complexity of issues and lateness in getting started were reasons for requested additional time for the report," McNally said.

The Knoxville News Sentinel recently sued the Knox County Commission and 20 current and former commissioners, claiming the commission violated the state Open Meetings Act.

The newspaper said the commissioners appointed 12 new officeholders after holding private discussions before a meeting and during recesses. The law forbids two or more elected officials on the same body from secretly meeting or deliberating about public issues.

Gibson said the Tennessee County Commissioners Association would like to remove the word "deliberating" from the law, a move he opposes.

"It's one of the strongest parts of the Tennessee law," he said. "It protects against deal-making by small groups of elected officials, where decisions get made before they go into a meeting."

Doug Goddard, executive director of the county commissioners association, said the governor should wait on the study committee before creating an open records ombudsman.

"We haven't studied the issue," Goddard said. "I don't think we need to jump ahead of the committee."

Bredesen has said the ombudsman would be part of state Comptroller John Morgan's office, which is responsible for auditing local governments.

"I think that's certainly a step in the right direction," McNally said. "That individual could not only answer questions, but also collect data on where the problems exist."

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