Image Credit: Gov. Bill Lee / Facebook
The Tennessee Conservative [By Jason Vaughn] –
Since the Tennessee Conservative was founded, we have been denied requested information from the office of Governor Lee on almost every occasion.
Reaching out as private citizens also resulted in no response or a form letter that didn’t address the inquiry we had presented. The vehicle used by the Lee administration to legally block governmental transparency and bypass the Tennessee Open Records Act has now been revealed.
The office of Governor Bill Lee uses a public records exemption called the “deliberative process privilege” that allows “high government officials” to keep documents secret if they deem them to be part of their deliberative decision making process.
The Tennessean alone has tracked over 60 requests from local journalists, residents, and state representatives since 2019 that have been denied by the governor’s office using this privilege.
Prior to 2013, the exemption didn’t exist in the Volunteer State but was made law on October 29, 2013 when the Tennessee Court of Appeals carved out the exemption to the Tennessee Open Records Act codified at T.C.A. § 10-7-101.
The ruling came about as a result of Davidson v. Bredesen, et al, No. M2012-02374-COA-R3-CV, 2013 WL 5872286 (Tenn. Ct. App. Oct. 29, 2013).
The Court upheld a lower court’s ruling that Governor Phil Bredesen’s administration was justified in denying the release of records on the basis that they were part of the “deliberative process” about how to deal with demonstrators encamped in the state Capitol in 2005 to protest cuts to TennCare.
According to the Grant, Konvalinka, & Harrison law firm, the Court found that the deliberative process privilege is a common law privilege and that there is a “valid need” that the advice high governmental officials receive should be protected from disclosure.
The Court further identified high governmental officials as “those vested with the responsibility of developing and implementing law and public policy, many times requiring that differing and various interests and viewpoints be considered.”
The Court of Appeals’ ruling caused public records advocates to question the decision, pointing to prior appellate rulings which hold that the Tennessee Open Record Act is intended to give the fullest possible access to public records and to promote government accountability.
In addition, proponents of greater access to public records argue that the attorney-client privilege already blocks access to certain open records and the deliberative process exception unnecessarily expands this privilege.
Also, the question of who qualifies for a high government official is up for debate, both at the state level and local level.
Due to the exemption lacking any specificity on usage, open records advocates state that its existence can lead to abuse by state and local officials.
Deborah Fisher, executive director of the Tennessee Coalition for Open Government, said, “it basically lets them take a magic wand, and whatever they don’t want to release they just use this phrase over it: ‘deliberative process.’ There’s no limit to what they can keep secret.”
The Tennessean reports that from January 19, 2019 when Lee took office through mid-September of the same year, the administration utilized the exemption 61 times to deny access to a wide range of requests including those regarding COVID-19 response measures, financial assistance programs, prison safety concerns and far more.
According to the records, the vast majority of the denied requests were for texts and emails between Lee’s office and others such as legislators, private contractors and members of the governor’s own office.
Other state agencies and departments in the Lee administration also abuse the deliberative process exemption when denying access to public records.
Fisher stated that the exemption is “not American” and that “the public has the right to know what their government is doing.” She went on to say that citizens have the right to “talk about it” and “give their opinion.”
She says that constituents “need to know what their government is doing because they need that information to then make decisions on who to watch, and who to vote for.”
Ironically, when Lee took office, he claimed his administration was taking steps to increase government transparency, even going so far as to sign legislation into law to protect citizens who openly criticize government and other public officials.
Transparency was also one Lee’s campaign promises that he touted in his “Ten for Tenn” plan that he called his “contract with Tennesseans.”
Number 7 states verbatim: “Make Government More Accessible, Open, and Accountable to Taxpayers“
Jade Byers, spokesperson for Lee, defends the administration’s use of deliberative process stating that once decisions are made, the governor always shares those publicly claiming that this aligns with administration’s “commitment to transparency.”
Fisher states that “They have a vision for this exemption, and their vision of it is super, super broad — it’s basically whatever they want it to be. It’s any communications that if the public knew about it, it would be embarrassing. Any communications that might reveal factors in decision-making that aren’t flattering….”
Mark Cate, president and principal of the Stones River Group public affairs firm and former chief of staff to Gov. Bill Haslam, states that the privilege should be held to “really important, critical levels and elements of governing.”
“You have to be careful not to let it permeate to things that you just don’t really want to answer. And it has to be things that are really central to important policies and decisions you’re making on behalf of citizens,” Cate said.
According to The Tennessean, Lee’s office has used the “deliberative process privilege” to block 80% of media open records requests, 10% of private citizen requests, 5% of requests originating from law firms and advocacy groups, 3% from the government and 2% from businesses.
The Grant, Konvalinka, & Harrison law firm states that the “deliberative process privilege” decision made by the Tennessee Court of Appeals was “unprecedented, is of “significant public interest” and would be a good candidate for Supreme Court review.
About the Author: Jason Vaughn, Media Coordinator for The Tennessee Conservative ~ Jason previously worked for a legacy publishing company based in Crossville, TN in a variety of roles through his career. Most recently, he served as Deputy Director for their flagship publication. Prior, he was a freelance journalist writing articles that appeared in the Herald Citizen, the Crossville Chronicle and The Oracle among others. He graduated from Tennessee Technological University with a Bachelor’s in English-Journalism, with minors in Broadcast Journalism and History. Contact Jason at news@TennesseeConservativeNews.com
7 Responses
Typical RINO! That’s why I didn’t vote for him this last election. Met him four years and asked him to allow electric companies to cross each others boundaries so people would have more internet choices. He said the legislature was working to change the law to allow that to happen. Rusty Crowe was also there and said the same thing. Four years later Nothing has changed. Less than a quarter of a mile down the road they have 1 gigabit internet and we have 10 mbs and that is on a good day. If it rains it goes out. But because the law hasn’t been changed. We still have the same crappy internet with no other choice. By doing nothing they create monopolies. Which is just pathetic. So no transparency with this administration comes as no surprise. He sold out Tennessee with the Ford deal which is the green new deal in disguise. Just look what they are proposing for Chattanooga. We are going from a red state to blue quickly under this administration.
In God we trust not government or man.
Have a blessed day.
Lee is nothing but a wolf on sheep’s clothing,a rhino that has sold his soul to China for a quick buck
This just proves they have something to hide. That’s what’s wrong with all levels of Government . Closed doors and secret deals.
What do you expect from a China transplant? He has closer ties with China than the Biden’s.
Please say more about Lee’s ties to China.
Yes please tell us about Lee’s ties to China.
Is anyone really surprised?