Gov. Bill Lee’s administration is seeking a sweeping exemption from the public records law that would make confidential any Tennessee Department of Tourism Development records that the commissioner determines are too sensitive to release.
The bill, HB1692 / SB 2093, will be considered for the first time in the House Public Service Subcommittee on Tuesday.
The proposed law is modeled after a similar exemption for the Tennessee Department of Economic and Community Development that was passed in 1988.
The Department of Tourism can keep data closed for 10 years
However, it varies on the amount of time “sensitive” information will be confidential. The tourism department will be able to keep such “sensitive” data and information confidential for 10 years, while the ECD can keep so-called “sensitive records” confidential for five years.
The other difference is the definition of “sensitive”. While both definitions are broad and subject to interpretation, the tourism department’s definition appears to be broader.
For ZHHF, sensitive information is defined as information that, if disclosed, “would seriously impair the ability of this state to compete or enter into economic or community development agreements or contracts.”
For the tourism department, sensitive information is defined as information in which “disclosure would adversely affect the department’s ability to carry out its statutory functions”.
Both the ECD exemption and the proposed new tourism development exemption give the department’s commissioner the authority to decide what is sensitive, only by receiving an “affirmative agreement” from the Attorney General’s Office.
The information can be kept confidential by anyone in the public, including lawmakers, and it’s unclear whether General Assembly committees can compel disclosure if they pass this exemption.
The AG has signaled that he does not want “Monday-morning protection” of state decisions
It is not certain that the Office of the Attorney General would serve as an effective tool to encourage public disclosure based on the office’s multiple positions on public records in the past.
For example, just two years ago, the Attorney General’s Office stated in a Davidson County chancery court during a public records challenge that they believed consultant reports related to the state’s response to COVID should be confidential because the release theirs would allow “Monday morning protection.” of state decisions. (The governor’s office was eventually forced by the court to release the reports.)
So what kind of logs can be deleted?
Most of the department’s money, in addition to funding visitor centers, goes to marketing efforts and grants to local government units and tourism organizations.
Any local government grant is likely to remain public as a local government record, but other contracts may be more difficult to review. While the proposed legislation says the department’s binding contracts will be made public — at least after the agreements are signed — the law allows such contracts, or certain details of the contracts, to be confidential for 10 years if deemed sensitive by the commissioner.
The department is led by Commissioner Mark Ezell and has received large infusions of money in recent years to boost tourism marketing, more than $8 million last year and an additional $9.5 million proposed this year. These funds can be used to work with private companies and provide grants.
Metrics on state tourism marketing results may be made confidential
Currently, any documents on the results of marketing efforts — such as measurements of increases in hotel night stays or visitor traffic — are open to the public, but if the bill is passed, such information could be considered sensitive by the commissioner. as competitive information. philosophy is often used to explain why government information should be secret. Internal communications and reports explaining the reasons for funding certain ventures may also be confidential. In general, visibility into the work of the department will decrease.
An example of a recent department project is one that was listed only as a $2.5 million “marketing project” in the governor’s budget, but was later revealed through public information to be a 250-dollar voucher program. dollars to airlines for the first 10,000 people to book travel. Tennessee’s top cities in 2021. The goal was to help the hospitality industry recover from the COVID-19 pandemic, but the airline vouchers were largely seen as a failure, even by disappointed lawmakers who said they would have seen more traditional marketing, especially for rural areas. Under the proposed exemption, any information related to such a project may be kept secret.
Governor Bill Lee has been willing to invest significant dollars in the visitor industry. While some funding has gone to state parks and local projects, the biggest dollars have been pledged to more ambitious projects, such as $500 million for the owners of the Tennessee Titans to help them build a new $2.1 billion stadium in Nashville. It is widely expected that the tourism department will spend significant money trying to lure a Super Bowl to Nashville at that new stadium to boost visitors, all of which data can also be kept confidential under the exemption.
Because of the breadth of the proposed exemption and the way the ECD exemption is set up to block public records requests on controversial issues, it is not unreasonable to anticipate that many of the tourism department’s choices about how to spend its money and especially any results thereof. (or lack of results) would quickly become off limits to the public.
The broad ECD waiver was passed during the administration of Republican Gov. Don Sundquist, when Democrats held majorities in the Senate and House. It hasn’t been updated since then, and information about the ODA deals remains murky, especially the results about jobs created versus jobs promised and who is getting the biggest tax breaks.
Lawmakers have been successful in adding minimum annual reporting requirements on grant results and tax breaks for companies. No additional visibility into DHF results has been added during Lee’s administration.