The state of Tennessee has rejected an open records request for reports by 22 state agencies on how to improve the lives of rural Tennesseans.
The recommendations were requested by Governor Bill Lee when he took office in January. Those reports have now been completed, but the governor’s office wants to keep them private. It rejected the Tennessean newspaper’s request for copies of the reports, claiming these documents are exempt from the Tennessee Public Records Act because they are part of the “deliberative process” involved in forming policy.
The Tennessean was leaked a copy of one of the reports, which came from the state Department of Health. It’s a 20-page report, complete with a cover letter from Dr. Lisa Piercey, the department’s commissioner, addressed to “Governor Lee and Fellow Tennesseans”. The recommendations range from doing more to prevent and treat substance abuse to improving access to primary care and specialty services — nothing too controversial. The report didn’t address a couple of the biggest health care concerns for rural Tennesseans: how to keep rural hospitals from closing and how to increase access to health insurance.
Still, the governor’s office thought releasing these recommendations to the public was a bad idea.
“Drawing conclusions about policy ideas from an incomplete document at a single department would be like calling the ballgame after watching only one team in warmups,” said Laine Arnold, a spokeswoman for the governor.
This isn’t the only example of how the governor’s office is trying to keep the “deliberative process” over rural health care policy from public view. It’s also holding “listening sessions” around the state, but not everyone is invited. In August, a state official asked a reporter to leave an event at Lipscomb University attended by health care lobbyists, saying it was a “private affair.”
Lee pledged to make state government more transparent when he took office, but that’s not happening on this issue.
That bothers Deborah Fisher. The executive director of the Tennessee Coalition for Open Government wrote in a blog on TCOG’s website that the decision to exempt from public disclosure recommendations by state agencies to the governor “is a legal question.” But whether they should be exempt from the Tennessee Public Records Act “is a question worth all of our reflection in light of the law ‘favoring governmental openness and accountability.’”
“If one believes in the marketplace of ideas, as I do, making public policy recommendations from state agencies on issues as broadly important as rural improvement can only strengthen the end result,” Fisher wrote, going on to address the court rulings that broadened the “deliberative process” exemption to the Tennessee Public Records Act. In 2013, the Tennessee Court of Appeals ruled that a protester who sued over alleged harassment by state officials during a sit-in at the state Capitol was not entitled to notes from meetings and telephone conversations between state officials. The court ruled these documents were protected by the “deliberative process” privilege.
“There is a ‘valid need’ that the advice high governmental officials receive be protected from disclosure,” the court ruled.
This ruling alarmed open-government advocates, Fisher noted.
“They worried that the court’s broadly worded ruling could spur public officials to begin claiming confidentiality of documents and reports that traditionally have been considered public record,” she wrote.
They were right to be worried, it appears.