Sunday, June 22, 2008

Lawsuits Still Needed To Release Public Records

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.

Legal Reminder

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.

Still Open

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.

Easy Answer

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.

Mixed Message

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.

Street Legal

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.


Zippy the giver said...

Maybe there should be a list of problems compiled by those parties in the know of all the known obfuscations by public officials posted on a known public site so that the FBI can begin to know what records to look into more easily. Let the public decide if it's whiney to look at on a personal level.
I personally don't care if someone is new on the job, when a mistake that equals a breach of law is made it needs to be rectified IMMEDIATELY. If not, something shady is happening.
The nice guy schtick gets a lot of these lawbreakers off the hook with those who find it hard to hold a nice guy culpable, even if they are not so nice where the rubber meets the road.
If someone is nice to me in Memphis, I'm waiting on the other shoe to drop, looking for the knife, or I'm digging for the impropriety.
There needs to be a training for new people and there needs to be public records made public.
The ONLY reason they woouldn't be is to hide impropriety by officials still in office.
What a shame.

Harvey said...

We need to remind government at the city, county and state levels that they are nothing without us. We elected them and they are an extension of our will! Enough with the genuflecting and the head bowing to our leaders. Instead of worrying that someone might call them on their shrouded discussions, they need to be afraid of what will happen if they don't publish the records. Its not that Jones or anyone else is wearing the black hat necessarily, its that we have allowed a culture of secrets and handshakes to be the currency of government. If we allow these patterns to remain the same, anyone who is elected into office in Memphis, no matter how noble, smart, or dedicated they are, will face an uphill fight in trying to bring openness to our processes

Anonymous said...

Your philosophy of "any time two elected officials on the same legislative body are talking" sounds very high minded but it woefully naive and impractical.

With that said, I am painfully aware of corruption charges, not only in recent years but for the past 30+ years.

However, the "sausage making" process of creating laws is hurt by this overraction to the legal abuses.

Making compromise deals is as American as it gets. The Constitution is a result of compromises and backroom deals. Compromise has kept this Country together for 200+ years. Therefore, I have no problem with my State Rep making a deal to get some East TN legislators to help Memphis in return for help on some of their pet projects or my City Councilman discussing detailed, technical aspects of an ordinance or a budgetary matter with one or two others if it is in the City's interests. However, I realize that it is impractical and ineffective to try to do this in public settings every single time.

Smart City Consulting said...

anonymous 10:09: It may be naive, but it's still the law. And we're hard-pressed to come up with an example of why it's created any real hardship in the sausage making.

Zippy the giver said...

The Constitution was abolished and congress hasn't legally reconvened since a long time ago. Guess why?
High minded beats low goals and dumbed down city anyday. Goals are meant to be lofty and we are to do our very best to maintain them.
Integrity means that your word, obligation, the law, and OATH of office are to be adhered to NO MATTER WHAT. You are to do everything in your power to make sure that happens every single time or your word is worth nothing.
No one is saying that it has been done in a public setting everytime in the past, just that there must be a record and it must be made public.
If officials were professional enough to do busines during busines hours only and in their offices only, things would work better and be transparent as prescribed. It would be easier to keep their word.
It's not an overreaction to the legal process, it's what should have been done in the first place, if our lawmakers were more profesional instead of excuse makers dealing in the dark.

Anonymous said...

SCM, I am aware that it is the Law, even though it is a bad law that was created as an overreaction to a problem. Unfortunately, forums like this help to keep it going.

I don't know what your background is but I would guess that business is not part of it. If it were, I think you would understand the impracticality of having to establish a public meeting to have a detailed conversation versus picking up the phone, sending emails, texts, IM, or simply meeting over coffee.

Smart City Consulting said...


The laws were passed about 30 years ago, and we don't remember any problem to which they were an overreaction. What was that problem way back when?

In the end, it doesn't matter how impractical these laws are - and we don't believe that they are - because the public deserves to see decisions made in the light of day and to hear the deliberations that produced them.

By the way, our Sunshine Law is not as strict as some in other states, and they too still manage to conduct the public's business openly and transparently.

We think that elected officials make too much about how hard it is to conduct business in the context of these laws. If they think it's problematic, they should not run, because they are the rules of the game.

Zippy the giver said...

I have a nickel in one hand and an excuse in the other, guess which one spends.
Enough with the drama already, look for ways to make it happen. You'll be happier if you do.
There are many public functions that can not be and should not be run in such a manner that public records are not kept and city business is DEFINITELY one of them. Things get done the wrong way often when not conducted in the office and then there is no way to rout the corruption if their isn't a public record.
Surely you're not suggestion that your inconvenience is more important than doing it right.
I do agree that it is a bad law, because obviously it is ineffective in Memphis.

Zippy the giver said...

Also, I haven't really seen a lot of things here done right, let alone the right way. That is a betrayal of the public trust. Breaking the laws is operating outside of integrity. Surely as a business man you would want your word to be your bond, after all, it's all you really have. Surely you value your family time more than some aggregious way of being that gets results that don't quite fit with family values that happens in the off hours. If we could get the right thing done just once it would appear miraculous, if we could get it done the right way it would look like somebody actually had the right idea and cared.

Anonymous said...

Speaking of public records, Smart City, exactly who is involved in Smart City and who writes your blog posts. It would provide the public with better information if we knew the identity of each author.

Zippy the giver said...

Defense, defense, defense!
C'mon man, you did not just stoop to that post.
I believe the debate is about the problem with officials not maintaining the sunshine law.
I think it's more about the officials evolving their jobs around the comfort of their own hind quarters, a classic sign of a bad investment and a business that is "going out of busines". there is no defense of that.
Arguing against excellence. Tisk Tisk.
Step outside your comfort zone and try instead of arguing not to do anything new. It's just whiney.

Smart City Consulting said...

anonymous 9:45:

This blog is a corporate blog, meaning that it represents the thinking of our firm and is based on our collective experience and insights. For that reason, we don't attribute individual posts.

Zippy the giver said...

Looks like MCS will just throw it in the streets for anyone to read.