Government transparency took some big steps forward in the waning days of 2023 here in Tennessee.
It started with a judge’s order requiring the Tennessee Valley Authority to disclose the salaries of its four regional vice presidents – information the federal agency had sought to conceal.
That widely publicized decision was followed by another unreported development in the case that may have even greater ramifications for open government in Tennessee.
As the losing party in the Freedom of Information lawsuit that the Reporters Committee for Freedom of the Press filed on my behalf in U.S. District Court in Knoxville, TVA agreed to settle a remaining issue in the case – the possibility of being ordered to pay the prevailing party’s legal costs.
So, just days before Christmas, the federal power company cut a check. In all, TVA paid the Reporters Committee $14,324.04 to cover its legal fees and court costs.
TVA critic Stephen Smith said he’s unsure if the development will change the agency’s secretive behavior but believes it will make TVA and other government bodies think twice about withholding information from the public.
“We just scratch our heads at all the things TVA gets away with,’’ said Smith, executive director of the Southern Alliance for Clean Energy, a Knoxville-based nonprofit that has fought several information battles with TVA in its bid to promote “responsible and equitable energy choices” including solar and wind power.
“TVA just completely disregards, I think, the spirit and the intent of the Freedom of Information Act by using all kinds of procedural roadblocks to delay and slow down and prevent (the release of information that) would be extraordinarily valuable’’ to the public, he said.
The settlement is significant, in part, because it marks only the second time that the Reporters Committee has recovered legal fees since moving into Tennessee four years ago. Attorneys with the Washington-based nonprofit represent journalists free of charge to help access records that public officials refuse to release. The Reporters Committee opened an office in Nashville in 2020 through its Local Legal Initiative.
Nationwide, courts often award payments to recover attorney fees and other litigation costs incurred by prevailing parties who sue for access to public records – a practice also known as fee-shifting – as a way to incentivize compliance with open records laws.
Yet the Reporters Committee faces particularly stiff challenges here: It has yet to be awarded attorney fees by Tennessee’s state courts.
“We are a state where fee awards are relatively rare,’’ said Paul McAdoo, the Reporters Committee’s attorney in Tennessee who represented me in my suit against TVA. “Getting fee recoveries in Tennessee is quite challenging.’’
Many states, including Florida, Washington and North Carolina, have mandatory provisions to award recovery of attorney fees when a plaintiff suing for access to records prevails.
Tennessee requires a higher threshold. It involves a three-step process that begins with winning the suit and includes a judicial finding that a government agency willfully withheld public records. Even with a finding of willfulness, fee recoveries are still left to the discretion of judges.
Despite this obstacle, 2024 holds great promise for increased government transparency in Tennessee.
Though the federal court decision involving TVA has no direct bearing on Tennessee’s state courts, as the Southern Alliance’s Smith said, it serves as a reminder that there can be a price to pay for disregarding open records laws.
Another reason for hope involves the very presence of the Reporters Committee here. McAdoo, its Tennessee attorney, has represented me on two successful public access suits already, and has brought three other ongoing suits on my behalf. I could never have done this on my own. That’s the value of the Reporters Committee: It enables journalists to pursue actions they otherwise could not afford.
That value continues to grow as legacy media wrestles with deepening revenue loss and limited resources.
Meanwhile, several local news media organizations have formed a coalition in hopes of seeking remedies outside of court to cure longstanding difficulties in gaining access to public records in Memphis. You’ll be hearing more about that in the coming weeks.
A free press serves a vital role in protecting our democracy. But to do that, we need access to public information. Unfortunately, the government isn’t always willing to release that information freely.
Preserving our rights – preserving our democracy – requires focus, energy, commitment and vigilance. Fortunately, all those factors are lining up.
With a little luck, 2024 could be the year of transparency in Memphis and Tennessee.