by Jon Styf
Metro Nashville denied an open records request for its internal communications related to Nashville’s East Bank, citing a “deliberative process privilege” exemption to the state’s open records law.
Justin Hayes, a Nashville resident who requested those records, only received notice of the exemption after following up on the records request several times. Initially, Hayes was just provided email threads from communications staff commenting on story links.
“There were emails that I could not produce, because they are protected from public disclosure by attorney-client privilege or deliberative process privilege,” responded Lora Barkenbus Fox, Associate Director of Law for the Metropolitan Government.
The deliberative process exemption is currently cited in a lawsuit, between the Nashville Post’s Stephen Elliott and the office of Gov. Bill Lee over a multi-million contract and outline of COVID-19 scenarios from 2020.
In that case, Janet Kleinfelter, deputy attorney general for Tennessee, argued that the records should not be released because it would chill government officials from making decisions in the future and the “privilege is rooted in the ‘obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.'”
Elliott’s counsel, however, argued that the records were clearly public.
“The public has a right to inquire about what government does,” attorney Paul McAdoo said. “To be offended by that seems peculiar.”
Deborah Fisher, Executive Director for the Tennessee Coalition for Open Government, said that she has seen government agencies increasingly attempt to cite deliberative process to keep public records out of the hands of the public.
“The problem is that deliberative process is not defined in Tennessee law and really not beyond the application to the governor and his ‘trusted’ advisors,” Fisher said. “In a recent lawsuit against the state for withholding a report from the consulting company McKinsey related to the state’s COVID response, the state AG’s office argued that deliberative process should cover any documents that would create “second-guessing” of government. Those are the state’s words, not mine.
“Obviously, my organization … finds that reasoning repulsive. It is the right of citizens to have oversight over their government. Government should not have the power to withhold information just because it might cause citizens to second-guess decisions. That’s antithesis to the idea of a government for the people, by the people.”
Fisher believes that the exemption needs to be challenged legally.
“My fear is that in this vacuum, local and state government in Tennessee is expanding its idea of deliberative process to withhold information,” Fisher said. They know that most people don’t have the money to go to court to challenge it. If someone does file a lawsuit, maybe they would release what they were previously withholding, realizing they can’t defend their actions in court. But it’s a terrible process and not good for citizens.”
Metro Nashville and Tennessee Titans officials are scheduled to make a presentation at Wednesday’s 5:30 p.m. meeting of the city’s East Bank Stadium Committee, though the depth of their negotiation update is still uncertain.
An agenda for the meeting states “Update On Status Of Negotiations” without naming any presenters.
At the committee’s Aug. 30 meeting, Chair Bob Mendes said that details of the deal could be announced at the meeting.
“While nobody is committing to it as directly as I’m about to say it, there’s strong indications that they’re planning on making public the terms of the deal they’re working on at that time,” Mendes said.
Mendes also said that he was planning for the committee’s work to be complete in time for a potential Metro Nashville council vote on bonds for the project in late November, though he had heard others mention a December timeline for a council vote.
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Jon Styf is an award-winning editor and reporter who has worked in Illinois, Texas, Wisconsin, Florida and Michigan in local newsrooms over the past 20 years, working for Shaw Media, Hearst and several other companies. Styf is a reporter at The Center Square.
