It’s puzzling why it’s so hard for some elected officials to grasp the meaning of two straightforward laws that should guide all actions of the public sector – the Tennessee Open Meetings and Public Records laws.
In a sentence, it’s as simple as this: public business is the public’s business.
So, any time two elected officials on the same legislative body are talking, it’s the public’s business. And all state and local government records are public records, because they deal with the public’s business.
There are some very limited exceptions to both laws, but if there’s ever a question about whether a meeting should be opened or whether a record is public, the simple assumption should be that they are.
Chancellor Walter Evans reminded all officials of this fact with his ruling six days ago that records of applicants for the superintendent’s job of Memphis City Schools are public records.
The Commercial Appeal deserves credit for filing the lawsuit against the school district, because it’s widely believed in the public sector that our daily will threaten court action but rarely does. (Of course, that’s better than the general lack of fear toward the electronic media.) Of course, our daily newspaper has probably decided over time to pick its fights. If it filed a lawsuit every time there is a violation in Memphis, it would be in court all the time.
We presume that The Commercial Appeal doesn’t have the option to ask for compensatory damages in such a lawsuit, but it would seem to be justifiable. After all, the CA probably thought it resolved this in a 1979 Tennessee Court of Appeal ruling issued in response to a somewhat similar lawsuit by our daily newspaper.
The citation for that 29-year-old lawsuit – Board of Education v. Memphis Publishing Co., 585 S.W. 2d 629 Tenn. Ct. App. 1979 – sums it up pretty unequivocably: Applications of those seeking the position of school superintendent are records which are open to public inspection.
As a result of this precedent, it’s stupefying that Memphis City Schools felt compelled to offer up a defense to the complaint. Surely, someone at the district expected such a lawsuit, and if it was thought that hiring a search firm would hide the applicants from the intentions of the public records law, it would constitute little more than a subterfuge. (These days, the district’s new school general counsel so far seems a breath of fresh air, and perhaps, he would seen these pitfalls if he had been at the district at the time of the hiring of the search firm.)
More to the point, it appears that Chancellor Evans sees a clearer logic. If a third party entity is acting as an agent for a public agency, it cannot be a way to sidestep the requirements of the public records law. In essence, the records of that third party entity are the property of the public entity, and therefore, they are the property of the public itself.
It’s the school district’s position that since the Memphis City Schools Board of Commissioners never saw the list of all applicants or personally possessed the documents, they are not public. Board member Martavius Jones, chairman of the search committee, said, “It’s a privacy issue,” and suggested that any member of the public in a similar process would expect some degree of privacy.
Of course, that begs the question of why any member of the public would expect to be immune from the public records laws of Tennessee that governor the school district. In the end, if someone doesn’t want to subject themselves to public scrutiny, they have an easy way to handle it – don’t apply.
Yes, it’s a cumbersome process and even inconvenient. But then again, that’s a pretty good description of democracy itself.
More to the point, at a time when the transparency and accountability of Memphis City Schools have been called into question by many, it’s exactly the wrong message for the district to be sending right now.
However, in the interest of fairness, none of us should be too hard on Commissioner Jones and his like-minded colleagues. Most of them are new to public life, and based on the number of flagrant violations that are regular parts of the public sector here, it would be easy for them to think there’s no problem with it.
Surprisingly, most elected officials in Tennessee take office without a formal orientation and most are never given an overview of the purpose and scope of the Sunshine Law and Public Records Act. In the absence of information, they rely on anecdotes and advice from other people, usually other elected officials, who have no in-depth understanding of the law either.
Into The Breach
For every breach of the law that makes it into the media, there are a dozen that don’t, so frequent are the casual violations. Journalists don’t even report on all the ones they see. As one Commercial Appeal reporter explained: “If we did, it’d just look like we’re whining. The public doesn’t really get the fact that the law isn’t about us, it’s about them.”
It’s the rare reporter – although there have been some – who refuse to leave an unscheduled meeting that they’ve stumbled across or the latest executive session. Most times, the option is to leave the room and report about the meeting, hoping that maybe finally this time the public will be equally upset.
Gadflies like Joe Saino and Jerry Cobb have made their reputations requesting reams of public records, and they can tell stories of obfuscation and misdirection that are incredulous. Similar stories of stonewalling and misleading are told by reporters, some of whom wait for half a year to get a standard reply from local government in response to records.
The consensus of some print and electronic reporters that we contacted is that city government is normally more open with records than county government. (They chalk it up to the presence of more lawyers in the county building than in City Hall.)
In an age when some local governments across the U.S. are posting all kinds of information on their websites, local governments here are essentially in the Cro-Magnon period of the digital era. The motivation for putting records on-line has largely been on getting money from the public rather than giving information to the public, and that’s too bad, because more communication and information would be a major step in encouraging more public involvement – not to mention confidence – in their governments.
It could begin simply – with an executive order from the mayors: Anytime a city or county department or board develops information, it needs also to develop a plan to get it online. Public records mean little if the public can’t see them.
It’s not just “public” information because it’s held by a public agency, but because it’s the public that pays for it. Getting more information on-line could say volumes to the public that foots the bills in the first place.