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Lee undermines public's right to 'beneficial' info

Johnson City Press • Feb 5, 2020 at 6:15 AM

“When there’s a reason for privacy — and certainly there is when there is a deliberation on policy or there’s a reason it would not be beneficial to the people of Tennessee to provide information — then certainly that privilege should be used and that deliberative process should be protected.” — Gov. Bill Lee.

With all due respect to the governor, we disagree.

States and the federal government have laws protecting public access to their meetings and the records they create. That's because when governments meet and do their work, they are acting on behalf of the people they represent. They are conducting the people's business and in that process, what they say, how they vote and all documents they create or receive are and should be available to the public.

There are exceptions, which vary by state, when the door is closed to public meetings and public documents are withheld. Some are justified and, we would argue, some are not. When the Tennessee Public Records Act was enacted in 1957 it provided for only two statutory exceptions. In 1988, there were 89; as of November 2017, the Office of Open Records Counsel identified 538.

As an example, for many years the Tennessee Bureau of Investigation had a statutory exception to the state's public records act for any documents related to an ongoing investigation. Over time, local police departments followed the same policy despite that it applied only to the TBI. Finally, last August, the state Court of Appeals ruled that state agencies, including the TBI, cannot withhold public records just because they're relevant to a criminal investigation.

The court said, “Under the state’s position, even public records accessible via state law for years prior may abruptly become exempt from disclosure, an astonishing proposition.” Thus, the court reaffirmed the letter as well as the spirit of the public records act in that the public's business should be accessible by the public.

But Governor Lee's administration, according to the Associated Press, "has invoked executive privilege multiple times to withhold documents from public records requests, even though such privilege is not defined in the state’s law, nor mentioned in its constitution."

According to the AP, “executive privilege” was cited three times last year, the governor's first in office, in denying certain documents from being released to the public. Lee’s communication director Chris Walker said executive privilege is being treated as the same established exemption known as the “deliberative process” privilege. That exemption allows government to hide documents if they are part of a decision-making process.

AP reports that Deborah Fisher, executive director of the Tennessee Coalition for Open Government, said open government advocates worry that deliberative process exemptions will be used too broadly.

“I think it would be helpful if the governor’s office explained in more detail what they consider as covered by deliberative process,” Fisher said.

In total, AP reported, Lee’s administration in 2019 declined to fulfill 13 public records requests after determining they fell under executive privilege, deliberative process or attorney-client privilege.

Governor Lee defends withholding public documents when there’s a "reason for privacy" or that it "would not be beneficial to the people" to provide them. The problem with that is that government, and not the people, is making that determination. And how in the world would Governor Lee or anyone in his administration know what information “would not be beneficial to the people”? If it’s government making the determination, we’d bet the people would love to know.

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