By ANGELE LATHAM, The Tennessean
NASHVILLE, Tenn. (AP) — Tennessee Gov. Bill Lee’s office has used a controversial public-records exemption to deny over 60 requests from local journalists, residents, and state representatives since 2019, which experts say is a blow to transparency and public accountability.
The exemption, called the “deliberative process privilege,” is an exception to state open-records laws that has been carved out by the courts. The privilege allows “high government officials” to deny records when they say the documents are part of their “deliberative decision-making process.”
Because the exemption lacks specificity, critics say it leads to abuse and an overly broad reading of the privilege by state and local officials.
“This broad interpretation is not a good thing because it basically lets them take a magic wand, and whatever they don’t want to release they just use this phrase over it: ‘deliberative process,'” said Deborah Fisher, executive director of the Tennessee Coalition for Open Government. “There’s no limit to what they can keep secret.” (Fisher is also public-access expert for the Free Speech Center.)
Between Jan. 19, 2019, when Lee took office, through mid-September, the governor’s office used the exemption 61 times to prevent access to a wide range of requests, blocking records regarding financial-assistance programs, COVID-19 response measures, prison-safety concerns and far more, according to records obtained by The Tennessean of Nashville.
The vast majority of the requests — some of which were partially denied — were for texts and emails between the governor’s office and others such as lawmakers, private contractors and members of the governor’s own office, according to the records.
The more than five dozen times the office denied requests citing the privilege is only a portion of the denials across state government. The Tennessean requested records for each time Lee’s office blocked records citing the privilege. Other state agencies and departments in the Lee administration also cite deliberative process when denying access to records.
For instance, the records don’t include the Department of Human Resources’ initial denial of a $1.5-million taxpayer-funded report by McKinsey & Co. that included recommendations on improving “government efficiency” and Tennessee’s response to the COVID-19 pandemic.
“It’s not American,” Fisher said. “The public has a right to information about what their government is doing. And it is their right to talk about it, and to give their opinion about it. They need to know what their government is doing because they need that information to then make decisions on who to watch, and who to vote for.”
When Lee took office, he touted efforts his administration was taking to increase government transparency, including inviting the public to comment on legislation and launching a website to give more disclosure on economic-development grants. And he signed legislation helping protect residents who criticize government officials and other public figures.
But he has faced criticism in other areas, including for hosting a series of closed-door meetings across the state on health care and criminal justice, and for his administration’s use of the deliberative-process privilege.
Lee spokesman Jade Byers stood by the use of the exemption, saying once decisions are made, the governor shares those publicly.
“The long-established deliberative process protection enables candor and the consideration of diverse ideas during the Governor’s decision-making process,” Byer said in a statement. “Consistent with the administration’s commitment to transparency, the outcomes of the Governor’s decisions are shared publicly.”
Byers did not answer additional questions posed by The Tennessean on whether the exemption is overused, or how Lee’s office determines who counts as a “high government official.”
Fisher said the privilege has been stifling Tennessee’s public accessibility since 2013, when former Gov. Phil Bredesen and his then-deputy governor David Cooley were sued by local protester Karl Davidson over claims that Bredesen “retaliated against (Davidson) for the exercise of his First Amendment rights” by ordering Cooley and others to harass and intimidate him and fellow protesters at the Capitol in 2005.
Cooley did not respond to requests for comment.
It was during these court proceedings that the Tennessee Court of Appeals carved out the deliberative-process exception to the Tennessee Open Records Act — upholding a lower court’s ruling that the Bredesen administration was fully justified in denying the release of records that could prove Davidson’s accusations on the basis that they were part of the “deliberative process.”
The broad interpretation is central to the governor’s usage of the exemption — the court only restricted the users of the privilege to “high government officials” — or those “vested with the responsibility of developing and implementing law and public policy,” according to court records in the original case.
Lee’s office denied records requests inquiring into members of the Legislative Affairs Office, his chief of staff, the Tennessee Board of Parole, House members and far more — showing a widespread implementation of the “high government official” definition.
“They have a vision for this exemption, and their vision of it is super, super broad — it’s basically whatever they want it to be,” Fisher said. “It’s any communications that if the public knew about it, it would be embarrassing. Any communications that might reveal factors in decision-making that aren’t flattering … people have a right to know how their government is operating, though.”
Paul McAdoo, an attorney with the Reporters Committee for Freedom of the Press, agrees.
“I think there’s some question as to whether it is a viable exception to the Tennessee Public Records Act,” he said. “We actually don’t really know what it’s supposed to cover, or who can assert it. So there is a lot of uncertainty about that, which makes it challenging for requesters and for the government to know when it should be asserted.”
While Tennessee is not unique in having limitations on the release of public records, the deliberative-process privilege is not codified in law, but is simply established by case precedent. Thus, the governor’s use of the hardly defined and legally gray exception is so broad that it “casts a shadow” on public accountability, McAdoo said.
“There are 60-plus assertions by the governor of deliberative process,” he said. “That’s 60-plus requests that the citizens of Tennessee don’t get to see what’s happening behind the scenes in the governor’s office that may have helped inform them of what their government is doing on their behalf.”
One such denial was the Department of Human Resources refusal to release the McKinsey & Co., report. The Tennessean first requested the report in February 2021, and the state denied the request citing deliberative process.
Then-state employee Thomas Wesley requested the report. He was also denied access. Wesley then sued. The state eventually settled with Wesley and released portions of the report on government efficiency.
Meanwhile, the Nashville Post also sued over the denial of the report and sought information about McKinsey’s COVID-19 recommendations. McAdoo represented the Post against the state.
Fisher called the case the “longest public-records case [she’s] ever seen,” and criticized Deputy Attorney General Janet Kleinfelter for arguing that the deliberative-process privilege existed to prevent “Monday-morning quarterbacking” of state decisions.
According to Fisher’s account of the court hearing, Kleinfelter argued that allowing the public to see the reports would allow “the public to probe the editorial and policy judgment and/or reconstruct the pre-decisional judgments” of the Governor’s Unified Command Group, as well as himself, in responding to the COVID-19 pandemic and “would expose those governmental officials to public criticism.”
“The idea that the state can only get good advice from a consultant if they get that advice in secret?” Fisher asked. “That’s absurd.”
The Attorney General’s Office did not respond to a request for comment.
This past week, Davidson County Chancellor Patricia Head Moskal ruled against the state in the case. In her 22-page decision, she ruled the documents are public records under the Tennessee Public Records Act and “the withheld and redacted records are not excepted from disclosure by the deliberative process privilege.”
“Even assuming the deliberative process privilege were deemed to be an exception to the TPRA, the Court concludes the deliberative process privilege does not extend to and protect the withheld and redacted documents in this case,” Moskal wrote.
Moskal said the documents the state withheld reflect “one-way communications from McKinsey” to the state’s COVID-19 command. In large part, she said, the records contained factual information, pandemic stats and trends and how other states approached the public-health crisis.
Unlike the case establishing the deliberative-process privilege, the records in the McKinsey case largely contained information to help inform the state’s decisions, the judge concluded.
The state has until Feb. 2 to appeal the decision.
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