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Submitted by Peter Maher –
Our Tennessee Public Records Act (TPRA) has long stood as the backbone of government transparency in our state. It promises that government records “shall at all times be open for personal inspection” by Tennessee citizens and that officials must justify withholding information rather than requesters proving their right to see it. This commitment to openness is not just administrative housekeeping; our ability to access state government records is deeply connected to our First Amendment and the public’s broader right to a free press. Without the ability to inspect government activity, citizens cannot meaningfully scrutinize public institutions, journalists cannot fulfill their watchdog role, and accountability collapses.
It is against this backdrop that Tennessee’s HB1293/SB1114 emerged—legislation critics have aptly labeled a public‑records “Red Flag” law. The bill sits squarely at the friction point between the spirit and intent of our First Amendment and governmental frustration with individuals who file frequent or burdensome public records requests. Its evolution over multiple legislative sessions has exposed a fundamental tension: how to protect public employees from genuinely abusive conduct without undermining the public’s right—and obligation—to scrutinize its state and local governments.
The most recent version of the bill, enacted in 2025 as Public Chapter 392, removed the sunset clause on a provision allowing records custodians to seek injunctions against citizens believed to be making requests “with the intent to disrupt government operations.” This authority did not appear overnight. It traces back to Senator Ferrell Haile’s earlier efforts, including SB135/HB197, which failed in committee by a narrow 5–4 margin, with lawmakers in both parties raising concerns about the bill’s reach and subjectivity. Following that defeat, Haile revised the bill to require mandatory and expensive mediation before an injunction could be sought. But the core concept remained intact: giving government the power to “red flag” certain requesters based on the custodian’s interpretation of their motives.
Haile has repeatedly defended the legislation as a response to what he describes as bad‑faith “request flooding.” The example he most often points to came from the mayor of Gallatin, who said a single requester “appeared” less interested in information and more interested in financially burdening the city. Haile has insisted that he supports transparency but argues that some individuals “have no intent on using their rights in a responsible manner” and instead weaponize the TPRA to inflict damage.
Yet lawmakers across the ideological spectrum voiced discomfort with the original bill’s objectivity and potential for abuse. Former Senate Judiciary Chair Mike Bell warned that the measure risked targeting “political gadflies”—citizens who may be persistent, irritating, or adversarial, but who nonetheless serve an important civic function. Senator Jon Lundberg cautioned that addressing one narrow problem could open pathways for broader misuse. Senator Sara Kyle described the bill’s definition of harassment as overly subjective, warning that Tennessee was “going down a slippery slope.”
These are not abstract concerns. The bill provides no clear definition of a “bad actor,” no objective test for determining harassment, and no meaningful protection for watchdog journalists, citizen investigators, or frequent requesters—groups who often uncover wrongdoing precisely because they refuse to be brushed aside. When government actors are empowered to judge the motives of those holding them accountable, the risk of retaliation becomes impossible to ignore.
Other states managing abusive requester behavior tend to balance restrictions by offering citizens formal complaint or appeal processes. Tennessee does not. While a handful of states have vexatious‑requester laws, many more—including Mississippi—provide robust protections for requesters through independent bodies such as ethics commissions empowered to investigate First Amendment related complaints, mediate disputes, and enforce compliance. In Tennessee, the Office of Open Records Counsel (OORC) offers guidance and advice but has no enforcement authority whatsoever. Tennessee lawmakers have created a powerful, government‑protective mechanism without offering citizens any reciprocal means of accountability.
This missing safeguard is the heart of the issue. Under the current system, a government office may petition a court for an injunction, mandate expensive mediation, and label a requester as “harassing.” Tennessean citizens, by contrast, are provided with no administrative complaint process, no independent review board, and no enforcement agency to appeal to. Our only option is litigation—an expensive and often inaccessible route in a state where only a couple attorneys know what the TPRA is, where no bar association offers a referral for such matters, where Tennessee’s public law schools no longer offer these legal curriculums, and where Tennessee’s handful of such attorneys charge rates out of reach for most taxpayers.
The asymmetry is stark. Tennessee’s “Red Flag” framework protects agencies from citizens but offers no comparable protection for citizens against agencies.
What makes this imbalance more troubling is that Tennessee already has well‑established laws addressing genuinely disruptive acts—harassment, threats, obstruction of government operations. None requires a special category targeting individuals who use the public‑records system. By tying injunctions specifically to the act of requesting records, the law risks treating “persistent oversight” as equivalent to disruption.
Compounding the problem, Tennessee has still not provided any transparency about how this injunction authority has been used. The state has not released data on how often injunctions were granted prior to the sunset repeal, where mediations have occurred, what conduct was deemed “harassment,” how judges interpreted “legitimate purpose,” or whether particular types of requesters were disproportionately targeted. Without this information, there is no way to evaluate the law’s impact—and no way to ensure it is not being misused.
Senator Haile sought to address a real challenge: requesters who abuse the TPRA to burden government operations. But in its final form, Tennessee’s approach is nationally unique and one‑sided. It creates a powerful tool to restrain and intimidate citizens while offering no corresponding process to protect the public’s right to our public records. Until Tennessee establishes a formal complaint or appeal system—something as simple and functional as Mississippi’s—the imbalance will persist. For detail, The State of Mississippi provides its citizens with a simple and accessible process for filing public‑records complaints through the Mississippi Ethics Commission. When a citizen believes they have been unlawfully denied access to public records, they may submit a complaint using the Commission’s Public Records Complaint Form, which triggers a formal review. The Ethics Commission is empowered to forward the complaint to the relevant public body, require a written response within fourteen days, and then either dismiss the complaint, issue preliminary findings, conduct a hearing, or pursue further investigation. See MISSISSIPPI ETHICS COMMISSION
Transparency is a two‑way obligation. A healthy republic empowers both the government and the governed. Tennessee’s “Red Flag” public‑records law may protect government operations from abuse, but without meaningful citizen safeguards, it risks protecting government from accountability itself.
One Response
Thanx!