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Note from The Tennessee Conservative: Editorial statements in this column are the sole opinion of the author; they do not necessarily reflect the opinions of the staff of this publication.
Submitted by Peter Maher –
Tennessee’s open‑government framework rests on two pillars: the Tennessee Public Records Act (TPRA) and the Tennessee Open Meetings Act (TOMA). Together, they form the bedrock of transparency in our state. The TPRA establishes that all state, county, and municipal records “shall, at all times during business hours” be open to inspection unless a specific exception applies. TOMA, meanwhile, declares that “all meetings of any governing body are public” and must be accessible, noticed, and recorded, ensuring that the formation of public policy is conducted in full view of Tennessee.
To be clear, TOMA and TPRA raise different legal questions for our General Assembly. Under TOMA, the Attorney General has said courts cannot enforce the law against the Legislature because of separation‑of‑powers, not because the Legislature is exempt from openness entirely. Under TPRA, by contrast, no court has definitively held that legislative records are categorically excluded — making TPRA’s applicability an unresolved legal question, not a settled exemption.
Both laws were enacted for an obvious reason: trust in the legitimacy of government depends on the public’s ability to see what its government is doing. Yet when I asked the Tennessee General Assembly for its public records policy and the identity of its Public Records Request Coordinator (PRRC), I encountered a position that cuts sharply against these foundational principles.
On March 19, 2025—and repeatedly afterward—our General Assembly’s Office of Legislative Administration (OLA) told me:
“It has been judicially determined that the legislative branch is not a governmental agency for the purposes of the Public Records Act and, therefore, the legislature’s internal records are not open for inspection pursuant to Tennessee Code Annotated § 10‑7‑503.”
This categorical assertion, made again in April , 2025 and July, 2025, is presented as settled law. But the actual legal landscape is far more complicated, and OLA’s sweeping interpretation is not supported by our Attorney General’s own analysis.
An “open question” our General Assembly treats as closed
Our Attorney General’s 2006 Opinion (Op. 06‑038) concerned a bill that would have placed the General Assembly under TOMA. The opinion concluded that courts could not enforce TOMA against the Legislature without violating separation of powers—because one General Assembly cannot bind the next by statute. This relied on Mayhew v. Wilder (2001), which held that the Legislature had not bound itself to TOMA when enacting it. None of this, however, states that the Legislature is not “government” nor that it is universally exempt from transparency laws.
Public records experts have long noted that whether TPRA applies to the General Assembly’s internal administrative records remains, in practical terms, an open question—largely because no appellate court has issued a definitive ruling.
By contrast, TPRA explicitly requires governmental entities subject to it to maintain written records policies, publish PRRC information, and respond within seven business days. When an entity claims it is exempt from these obligations, the public deserves more than an unsupported citation and a repeated “see previous responses.”
The gap between “good faith practice” and legal compliance
OLA emphasized that our Legislature “strives in good faith” to respond to requests. Good faith is appreciated, but it is not a substitute for statutory compliance or a written policy.
When I requested the judicial decision allegedly holding that the Legislature is exempt from TPRA, I was directed to Adams v. State—a 2004 Chancery Court case with no clear bearing on legislative public‑records obligations. That citation does not resolve the matter, and relying on it to reject TPRA applicability raises more questions than answers.
Meanwhile, countless other Tennessee entities—counties, municipalities, boards, commissions—operate fully under TPRA, publish their PRRCs, and provide clear instructions to citizens who seek public records.
When Tennessee’s own Legislature is the only body that refuses to articulate its obligations in writing, transparency becomes conditional and discretionary.
OORC Mediation: a phone call unreturned
The Office of Open Records Counsel (OORC) exists to help resolve open‑records disputes and issue informal advisory opinions. It is explicitly authorized to mediate disputes under TPRA—but only if both sides consent.
In April 2025, I requested mediation with the General Assembly. Our OORC attempted contact. On May 8, 2025, OORC wrote that after two weeks with no reply, it assumed the General Assembly did not consent. On June 26, 2025, OORC confirmed that the extent of its mediation efforts consisted of a single voicemail placed on May 22, 2025—never returned—and no email correspondence at all.
Our state office created to reduce conflict over transparency could not get the Legislature even to confirm whether it would talk about transparency.
When constituent emails go to lobbyists
In July 2025, I requested records concerning instances where Senate district staff forwarded constituent emails to registered lobbyists without notification or permission. The risks are obvious: retaliation against whistleblowers, misuse of sensitive information, and lobbyists receiving privileged access to constituent concerns.
OLA labeled my request “incredibly vague” while again asserting that TPRA does not apply to internal legislative records—though it would “strive” to respond.
This is not how transparency laws are supposed to work. Under TPRA, requests must be sufficiently detailed, yes—but they cannot be dismissed merely because compliance is inconvenient or politically uncomfortable.
A path back to clarity
The road out of confusion is not complicated:
- Publish a written public records policy.
Even if the Legislature maintains its exemption argument, publishing a formal policy, identifying a PRRC, and outlining response timelines would bring order and predictability. OORC provides model language for this purpose. - Work again with our OORC to issue and post a public advisory opinion.
A clear, accessible advisory—synthesizing TPRA, TOMA, Mayhew, Op. 06‑038, and best practices—would give our General Assembly staff (and taxpayers) a consistent reference point. - Adopt clear and internal rules that voluntarily strengthen transparency.
Op. 06‑038 restricts judicial enforcement of TOMA against the Legislature; it does not prevent the Legislature from adopting its own openness rules. A modernized transparency rule could restore faith in the body’s commitment to public oversight.
What Tennesseans deserve
Tennessee case law and statutory instruction repeatedly emphasize a “presumption of openness” and the Legislature’s intent to provide “the fullest possible public access to public records.”
That presumption cannot be honored as long as our General Assembly insists that it is not a “governmental agency” under the laws that make Tennessee government transparent. If the question is truly open, the solution is simple: open it. Publish the policy. Name the PRRC. Respond within seven business days. Participate in OORC mediation requests. Stop relying on ambiguities that force taxpayers to waste time and money chasing answers that should be posted online.
Transparency is not performative; it is essential to sustaining trust in our Republic, and it should never hinge on whether someone chooses to read or return an email on a particular day.
