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TCOG: Incident Reports Involving Police Should Not Be Withheld from Public

Press release from the Tennessee Coalition for Open Government; August 9, 2014:

By Deborah Fisher, TCOG executive director

The Knoxville News Sentinel reported today that Oak Ridge officials have refused to release a police incident report in a case in which two officers fired four gunshots at a suicidal woman.

This is the second time in recent weeks that journalist Bob Fowler has reported that the police department has refused to give media a copy of an incident report in a situation involving or possibly involving police. The other was in a case in which a woman said she was sexually assaulted by someone who appeared to be a police officer or security guard.

In both instances, the Oak Ridge police released some information through a press release.

So why should citizens care that they won’t release the incident report?

An incident report, also called an offense report, is the initial recording of the alleged crime that took place. It’s what the officers on the scene write up after going out on a police call. It generally contains the who, what, when and where of what was reported to have happened. The incident report is an intake document in that police are writing down what they were told, or what they observed. It’s an official document.

By allowing someone in law enforcement – let’s say a police chief, or a deputy, or a detective, or a public information officer – to essentially pick and choose what information they share about what officers on the scene saw and recorded in a basic incident report, we are essentially giving police broad latitude to keep secret any details that they want. Anything – with no oversight or rules – just whatever they want. Even in cases where their police officers shot at a citizen, or potentially sexually assaulted someone.

That’s a pretty significant power to hand over.

This is not about not trusting your local police or sheriff’s department. Many of them deserve our respect and gratitude for putting their life on the line to keep our communities safe. And many of them want to share information with the public, not hide it. They know that transparency instills respect and trust in their departments. And they need that to do their job.

This is about retaining a citizen’s right to see public documents that help us know if our government is operating the way we want. It’s about sunshine being the best disinfectant for those who would abuse the power we vest in them.

Citizens in Tennessee don’t want a military state where police or sheriff’s departments have unlimited power with no check such as is provided by the Tennessee Open Records Act. Frankly, I would bet not many law enforcement officers want that kind of state either.

It’s not about any one local law enforcement agency. It’s about how we want a democratic government to work where the ultimate power lies with its citizenry. Information is the currency of democracy. Without information, citizens are at a deficit.

Police incident reports are timely documents about crime in our communities.

They should remain open for inspection.

Deborah Fisher is executive director of Tennessee Coalition for Open Government, an 11-year-old nonprofit alliance of media, citizens and good government groups who promote transparency in government.

Property Disclosure Requirement for Lawmakers Hits Snag

An ethics bill requiring Tennessee policymakers to disclose all real property they own other than their primary home has hit a snag this year, and the bill sponsor said she doesn’t expect it to pass.

Rep. Susan Lynn said she would still like to get the bill back in committee this year as a thermometer test.

Susan Lynn

“I perceive that a lot of members think that it’s a good idea, but I perceive also that a lot of members strongly oppose it,” the Mt. Juliet Republican said. “So it may need a little bit more time to become more apparent to the members as to why it’s important.”

Originally assigned to the House Local Government Committee, HB1063 was moved back to the speaker’s desk after Lynn failed to appear on two separate occasions to present her bill. However, Chairman Matthew Hill made a procedural error by invoking Rule 13, meant to kick in after the sponsor fails to appear for a third time.

To get the bill back on track, the House clerk’s office told Lynn she will have to see Rep. Joe Carr, chairman of the Local Government subcommittee.

“I need to call the clerk’s office to find out why I need to talk to the subcommittee chair, “ Lynn told TNReport.com. “I think it was a mistake we’re going to try and get worked out.”

HB 1063 would require all elected and certain appointed public officials, such as those on local and regional planning commissions or state boards, to disclose any real property owned by them, their spouses or any minor children living at home.

Earlier in March, Lynn told TNReport.com that she would entertain an amendment excepting state legislators from the new disclosure requirement if that’s the only way to make it a requirement for local government officials.

“I think it’s very important for local government to make this disclosure, especially the planning commission members,” she said. “I think property holdings that one has, especially holdings that they hold for some future opportunity, should be disclosed, [because] maybe they’re in a position to vote on things that will make the opportunity better.”

Kent Flanagan, executive director of the Tennessee Coalition for Open Government, agrees that the bill “offers a lot for citizens who don’t have the advantage of public office.”

“I think it’s critical for this legislation, or anything similar to it, to be enacted, simply to level the playing field because of economics,” said Flanagan, the former state bureau chief for The Associated Press.

During public discussion of a proposed development, if “everyone knows who owns property and where that property is located, then everyone knows where everyone stands. When people own property and don’t disclose it, I think that’s a clear conflict of interest.”

Still, the former newspaper editor doesn’t hold out high hopes for the bill’s passage.

“I think in terms of this legislation, the chances of it passing are probably slim with the legislator exemption,” Flanagan said. “If they’re not exempt, I don’t think it has a chance of passing.”

Amelia Morrison Hipps may be reached at amhipps@capitolnewstn.com, on Twitter @CapitolNews_TN or at 615-442-8667.

Haslam Yet to Reconsider Opening Up Secret Meeting Schedule

Gov. Bill Haslam vowed he and his staff would re-evaluate whether they should keep the governor’s meeting schedule secret, but he says he hasn’t gotten that far yet.

“We really hadn’t had that discussion again, and we will, in terms of looking at that,” Haslam told reporters Friday before a ribbon cutting at Saks distribution center in La Vergne.

Haslam’s administration rejected a TNReport request for the governor’s calendar dating back to his 2011 inauguration, citing “deliberative process privilege,” a common law provision not written into state code and meant to keep internal discussions private.

Haslam said his communications director, Alexia Poe, is looking into public records issues, but he did not say when he expected his administration would decide whether to reverse its decision.

“I don’t know of anything new on the Governor’s schedule,” Poe said over email. “It is my understanding we’re consistent with how Governor Bredesen handled similar requests.”

One advocate for greater government transparency says the governor should open up his past meeting schedule anyway.

“When Tennesseans can see his planner, it no longer becomes a big deal to opponents who thinks the governor may be up to no good and provides his supporters with documentation of the good faith effort he is making as the state’s highest elected official,” said Kent Flanagan, executive director of the Tennessee Coalition for Open Government.

While Flanagan said he generally trusts this governor, keeping the schedule secret sets a bad precedent for when a public official does violate the public trust.

Haslam said earlier this year his staff would also work with other agencies to standardize how to handle requests for public records. He also said he wants to guard against what he described as “fishing expeditions” by reporters or political campaigns asking for a broad range of documents.

Poe said she was working on those changes and will likely have more details in the upcoming weeks.

Haslam Administration Keeps Schedule-Planner Under Wraps

Gov. Bill Haslam isn’t too keen on letting Tennesseans in on who he’s meeting behind closed doors.

“There’s just a lot of discussions that we have, that any governor needs to have, as part of the decision-making process that we go through on so many different issues,” the governor said recently.

The administration rejected a request from TNReport in July to review or obtain copies of the governor’s calendar-scheduling planner dating back to his Jan. 15, 2010, inauguration through June 30, 2012.

Haslam’s office said his schedule falls under the protection of “deliberative process privilege.” The exception under common law allows for government secrecy in instances of communications, opinions and recommendations on policy issues.

However, the state government’s own open-records advocate, Elisha Hodge, says there’s no precedent under this exception in Tennessee to keep the governor’s calendar hidden from public view.

“In Tennessee, the deliberative process privilege has been discussed in a number of public records cases,” but never in the context of public officials’ calendars, said Hodge.

In the cases the judiciary did review, “the courts have never found the privilege to be applicable, based upon specific records that were at issue in the cases.”

Information like what’s on the governor’s schedule should be public, said Kent Flanagan, executive director of the Tennessee Coalition for Open Government.

“I don’t want to know when he brushes his teeth, and I don’t want to know when he goes to bed,” Flanagan said. “But when he’s acting in the official capacity for the state of Tennessee, the people of Tennessee need to see how he’s performing his duties.”

The only way to challenge the administration’s stance would be to sue the administration and take the governor to court, which is a costly option.

Haslam has something of a mixed history with government transparency since assuming the state’s highest office.

In his second executive order, which set ethics training requirements for his cabinet members, the governor said that “this Administration intends to set a high standard for openness, transparency and accountability.”

“It is the unwavering policy of the Executive Branch to facilitate the right of Tennesseans to know and have access to information with which they may hold state government accountable,” his executive order declared.

But his staff is now looking to standardize how agency officials respond to public requests for information, with an eye toward avoiding requests for public documents that amount to “fishing expeditions” that cost time and money to assemble.

His office also moved to let commissioners keep secret how much they earn from their various sources of income, and he advocated in favor of ensuring that companies winning millions of dollars worth of state economic development awards can keep their lists of business owners out of the public eye.

Past governors assented to varying levels of letting the public review their calendars, said Larry Daughtrey, a retired Capitol Hill reporter for the Tennessean. Daughtrey contrasted the general practice with the relative openness of Gov. Ned McWherter, who led the state from 1987 to 1995.

“With McWherter, you could get his meeting schedule, but you had to go to the press office and ask to see it. You could also walk into any meeting you wanted in the governor’s office,” he said. “I don’t remember any other governor who would let you see the meeting schedule, at least with any regularity.”

Haslam’s administration puts out a weekly public schedule, which includes certain public events reporters are invited to. Gov. Don Sundquist did much the same, said Beth Fortune, who was Sundquist’s press secretary. Sundquist served from 1995 to 2003.

“We issued a weekly calendar of Gov. Sundquist’s public events, not private meetings. Sometimes, we would open private meetings to the press, if requested, and depending upon the topic of the meeting and its participants,” she said via email.

Once their terms are over, governors hand over to the public hundreds of boxes worth of correspondence, records and scheduling information. The latest records in state archives are from the Sundquist administration and reveal flight schedules and appointments with various lawmakers and interest groups.

Records for Gov. Phil Bredesen, who was termed out of office in 2011, are still being processed into microfilm.

Governors in some other states, including the notoriously corrupt Illinois, allow their meeting schedules to be made public, including facts like who they met with, where and when. But officials there redact information on certain meetings.

Gov. Haslam offered that his administration may “re-evaluate” opening up his meeting schedule, but he wouldn’t say when.

“I can’t say it’s not a decision we won’t revisit as we’re here a little longer and get used to the different decisions and impacts that that might make. I think we just felt like coming out of the box, that there was a need just to protect that deliberative process for now,” Haslam told TNReport in an interview last month.

He said closing off his calendar now doesn’t mean the public is getting locked out of answers as to why certain decisions are made.

“(Citizens) really want to know where are you, what did you decide and tell me why you decided that,” said the governor. “And I think we do owe answers like that — whether it be issues we’re facing on health care issues, or whatever it is — to say here’s where we are, and here’s why we think what we do.”

TN No Longer an Openness Leader on Financial Disclosures

Advocates for open government in Tennessee are expressing concern about whether Gov. Bill Haslam’s executive order relaxing income disclosure rules portends similar steps away from transparency, but there seems to be little out-and-out outrage over the governor’s move.

“The only thing that bothers me about the executive order is the tone that it sets and the signal that it might send,” said Frank Gibson, executive director of the Tennessee Coalition for Open Government. “He’s not rolling back a law.”

Dick Williams, state chairman of Common Cause in Tennessee, had a similar reaction.

“I hope it’s not an indication of how we’re going to go from here, and I’d like to think it’s not,” Williams said. “But it’s just sad that his very first executive order, just a day or so after being sworn in, he takes a significant step backward.”

One fascinating aspect of the reaction, advocates for openness in government have said, is that the more demanding executive order that Phil Bredesen, Haslam’s predecessor, set as governor went largely unnoticed — until Haslam’s order loosened the requirements.

After being sworn in as the state’s 49th governor Jan. 15, Haslam’s first executive order was to declare that members of the executive branch must follow state law on disclosure, which brings the administration in line with the Legislature. The order means key administration officials including Cabinet members will have to divulge the sources of outside income but not the specific amounts they make. The step rolls back a Bredesen order, which called for disclosure of the amounts.

“Bredesen, to his credit, set a tone of openness by issuing that executive order in the first place,” Gibson said. “So I can’t slam him (Haslam) for doing it, because he’s basically doing what the law is for the Legislature.

“The thing that Bredesen did was far more disclosure than what Congress is required to do. Congress has to report the value of their investments in categories, from $50,000 to half a million dollars, and half a million dollars to a million, and a million to 5 million. So even members of Congress don’t have to report what their actual income is.”

Williams noted that the Haslam step presents a glaring change.

“It sticks out like a sore thumb at being a difference from what had been the precedent,” Williams said. “He (Haslam) is correct that the law doesn’t require it, but it’s kind of one of those things, once you’ve set the precedent, it’s definitely a step backward to not continue it.”

Haslam’s order caught the attention of the nonpartisan Sunlight Foundation, based in Washington, and its policy director, John Wonderlich, called the decision a “stunning disrespect for the role disclosure plays in democracy.”

“Governor Haslam’s executive order flouts the public trust embodied in that disclosure system, and places his personal and political concerns over the public interest and integrity of the very system he was elected to lead,” Wonderlich wrote.

A recurring refrain, however, is a call for a middle-of-the-road approach that would require ranges of income be reported, rather than none.

Robert Stern, president of the Center for Governmental Studies, a Los Angeles-based nonprofit research group, falls into that category.

“I guess my solution is a compromise, which is what we have in California and which I believe is recommended, which is ranges,” said Stern. “Over a thousand dollars. Over $10,000, over $100,000, over $1 million, and at that point who cares? You should have an idea.”

“We want to know what the conflict is and approximately if it’s a big conflict or a little conflict, but we don’t need to know the exact amount of the conflict,” added Stern, whose organization describes itself as promoting “innovative political and media solutions to help individuals participate more effectively in their communities and governments.”

Issue of Income Prominent in Gov’s Race

Common Cause’s Williams said the potential for conflict should be closely watched for department heads such as those in Economic and Community Development and Revenue, not because he has concerns specific to Haslam’s choices for those jobs but because of the nature of the positions.

Haslam named Bill Hagerty, founder and managing director of Hagerty Peterson & Co., a merchant bank and private equity firm, to the post of Economic and Community Development commissioner. Haslam picked Richard Roberts, director of Miller Industries, which makes towing and recovery vehicles, to head the Department of Revenue.

The issue of Haslam’s personal income rose prominently in the 2010 governor’s race, with opponents among Democrats and Republicans insisting that Haslam’s income from his family’s Pilot Corp. presented a conflict of interest. Ironically, one of Haslam’s harshest critics was his current commissioner of Safety, Bill Gibbons.

Gibbons ran against Haslam for the Republican nomination. He dropped out early but not before he proposed a plan for openness in government.

Gibbons, previously the Shelby County district attorney general, hit Haslam hard on the issue during the campaign and said every time the state widens a highway with a lot of commercial traffic Pilot has an interest with its truck stops. He said voters couldn’t know if it was a big conflict or a small conflict because Haslam would not reveal his income from Pilot. Haslam did divulge his income from investments outside Pilot Corp.

Haslam has also announced a blind trust for his holdings, but the trust will not include Pilot holdings or a real estate investment he has outside the state.

Among candidate Gibbons’ detailed plans for openness was a strengthening of disclosure laws by moving beyond the requirement of candidates and officeholders to disclose only the sources of income and require reporting of the amount of income from each source.

An effort to reach Gibbons this week for comment on Haslam’s executive order was unsuccessful.

Haslam consistently refused during the campaign to divulge the amount of his income from Pilot, as first requested by a consortium of the state’s largest newspapers. He reasoned that Tennesseans knew that his family owned Pilot and therefore knew all they needed to know. He has now extended that same principle to other members of his administration, and Haslam used the same consistent line of explanation when he addressed the executive order in a recent press conference as governor.

Deputy Gov. Claude Ramsey reiterated the explanation Haslam has given going back to the campaign.

“To the best of my knowledge the executive order was a follow-up to what he said all over this state to the people of Tennessee,” Ramsey said. “I don’t think the executive order was one period, one comma, different from what he had said for months.”

Haslam Order In Line With Other States’ Rules

Ramsey said to his knowledge there was no survey of what is done in other states to influence the decision.

There is little to suggest Haslam’s order is out of line with other states, although that doesn’t translate into a sparkling record on public disclosure.

The Center for Public Integrity, a journalistic research organization in Washington that promotes improving government openness and accountability, issued a report in 2009 in which Tennessee was among 20 states given a grade of “F” for its disclosure laws. Tennessee was given 57.5 points out of a possible 100, ranking 34th among the 50 states. Only Louisiana, Washington and Hawaii received a grade of “A.”

The report was an update to a report by the Center for Public Integrity issued in 2007. Tennessee received an “F” in that report as well.

Like all the surveys reviewed by TNReport, though, the center’s study focused on laws, not executive orders by governors.

Charts compiled by the Center for Ethics in Government for the National Conference of State Legislatures show a broad range of requirements on disclosure, with several states requiring reporting based on ranges of income.

The Center for Ethics in Government does not summarize its findings like the Center for Public Integrity, but Peggy Kerns, director of the ethics center, said, “I would think that most states do not require disclosure of the actual amount of income, just the source.”

Stern, the Los Angeles researcher, said he believes the work done by the Center for Public Integrity is a good measuring stick and that there has been “not much change at all” since the report was released.

The written report in 2007 did address more closely how state requirements affect governors than the more recent report.

“Requiring them to disclose their private financial ties could reveal possible conflicts of interest,” the 2007 report said. Only Washington received a grade of “A” in that report.

The 2007 study made specific mention that Bredesen, who was wealthy before his election, did not take a paycheck as governor, which put him in the company of then-Gov. Arnold Schwarzenegger of California. Then-Gov. Jon Corzine of New Jersey drew a salary of $1 a year, the report noted. Haslam, like Bredesen, is not accepting a paycheck from the state.

The 2009 report noted that two southern states — Louisiana and Mississippi — made the biggest improvements since the earlier study, and it pointed to Louisiana Gov. Bobby Jindal pushing through an ethics reform package that bolstered requirements for all lawmakers to report their financial interests. That action, the report said, led Louisiana to the top spot in its rankings, with 94.5 points out of 100 in the center’s 43-question survey.

Public Account + Personal E-mail = Public Record?

If a public employee sends a personal e-mail via his public account, is that message a public record?

That’s the question Hamilton County officials are grappling with, after a county employee was found to be operating a side business using his public e-mail account.

The county attorney appears to be battening down the hatches after that embarrassment and has refused the Chattanooga Times Free Press‘s subsequent request for e-mail records, the newspaper reported over the weekend.

Advocates of transparent government tend to favor disclosure when it comes to e-mail records. The head of the Tennessee Coalition for Open Government, for example, believes “that the law dealing with e-mails sent to and from public computers shows the Legislature clearly intended for them to be public records,” the paper says.

But officials don’t seem to be in agreement, questioning whether all e-mails including those sent to him are public. They’re suggesting the General Assembly clarify the law.