published Saturday, August 14th, 2010

A right to public records

Anyone who has followed state and local governing bodies is well aware that the public’s right to know has traditionally been observed more in the breach than in good faith.

Elected officials have often wrongly conferred or agreed in private on the actions and policies they approve or reject in their public meetings, depriving the public of the reasoning and factors that lead to their officials actions, and diminishing their accountability.

Elected and appointed officials and the government employees who exercise control over public records have commonly rejected, hindered or delayed public access to records to which any citizen is fully entitled under state law to see, read and obtain a copy.

Whether public officials or employees wrongly hinder public access to certain public records or background discussions because they don’t know better, or because they believe some public records should not be made public, they are simply wrong, and acting illegally, when they do so. Absent specific legal exclusions, all public records and accompanying multimedia documents should be made available promptly to citizens who request them. That mandate also includes e-mails and correspondence pertaining to public business between elected public officials.

The breadth of the law seems to be surprising to some. That became apparent Thursday in a County Commission meeting following a presentation on the scope of Tennessee’s Public Records and Sunshine Law acts by Elisha Hodge, legal counsel for the state’s Office of Open Records. Her office, established under an act of the Legislature by Gov. Phil Bredesen in 2008, was created specifically to help citizens obtain public records if they have been wrongly denied access.

Hodge’s appearance was sought by the commission following a request by this newspaper recently for a range of documents, including copies of mail and e-mail, that commissioners have received in the course of their official duties. Some of the commissioners have complied with that request; others have not. Hodge told the commissioners that all their correspondence, e-mails and even telephone messages relating to their office are public records and must be made available to the public on request.

In response to a question by newly elected Commissioner Tim Boyd as to when he was not in his official capacity, Hodge said he and other commissioners “are always in your official capacity. You can’t turn it on or off.”

Commissioners and other elected officials may find that uncomfortable, but it should not be onerous. It simply means that public officials may not legally evade the burden of public records’ and open meeting mandates by having deliberative discussions or communications with other commissioners on public business outside openly advertised meetings, nor may they conduct any public business in private.

Citizens, on the other hand, should be cheered by the clear directives delivered by Hodge, and by her office’s fresh emphasis on the broad scope of Tennessee’s open records and meetings acts.

The Legislature’s creation of her office, in fact, is the result of long and tedious effort by the Tennessee Coalition for Open Government. The advocacy group, representing many organizations, including this paper, has worked for years to require the state’s governmental entities, agencies, elected officials and employees to meet the requirements of the state’s open records laws.

The effort, spearheaded by the Coalition’s executive director, Frank Gibson, assumed urgency after a survey several years ago showed that most public agencies and offices commonly violated the law by denying public access to records. Visits by coalition members across the state showed that sheriffs’ offices, planning and zoning commissions, school systems, auditors’ offices and myriad other offices commonly and wrongly denied citizens requests for commonly filed records.

The state’s Public Records law, enacted in 1957, and the Sunshine Law, adopted in 1974, merit respect and consistent compliance. Hodge’s presentation should enhance compliance here. To ensure that, the County Commission decided Thursday to establish a dedicated office where records can be kept and viewed by the public. Commissioners also agreed to provide more access over the Internet to public records, including minutes of public meetings.

City officials and all other state, county and municipal governmental agencies and offices here, including public hospitals, should make the same commitment. Public accountability is crucial to an informed and engaged citizenry. It is also a matter of law. Officials who need to inform themselves of the scope of the law, and citizens who wish to discover the scope of information to which they are entitled, should click on Law at the Website for the Office of Open Records Counsel, at http://www.comptroller1.state.tn.us/openrecords/index.asp.

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