TN Governor claims ‘executive privilege,’ denies public records

NASHVILLE, Tenn. (AP) — Tennessee Gov. Bill Lee’s administration has invoked executive privilege multiple times to withhold documents from public records requests, even though such privilege is not defined in the state’s law, nor mentioned in its constitution.

Officials in Lee’s office say they are using it interchangeably with a separate protection when documents are deemed part of the executive office’s decision-making process.

Supreme courts in a handful of states have upheld a governor’s right to claim executive privilege in some circumstances.

According to documents provided by Lee’s team, “executive privilege” was cited three times during 2019 —the Republican’s first year in office — when denying certain documents from being released to the public.

Tennessee statutes, including the state’s open records laws, do not define executive privilege. The Tennessee Constitution does not mention it.

However, Lee’s communication director Chris Walker says executive privilege is not a new exemption. Instead, he says it is being treated as the same established exemption known as the “deliberative process” privilege.

That exemption allows high government officials a “deliberative process” privilege which ensures certain documents remain secret if officials determine them part of their decision-making process.

In each instance where the governor’s office cited executive privilege to deny public records, it also cited deliberative process. The governor’s office did not explain why both exemptions were used if they are supposed to be interchangeable.

Documents shielded by attorney-client privilege are also protected from being released in Tennessee.

Deborah Fisher, executive director of the Tennessee Coalition for Open Government, says open government advocates worry that deliberative process exemptions will be used too broadly — thus making it difficult to know whether it’s being used improperly without involving the courts.

“I think it would be helpful if the governor’s office explained in more detail what they consider as covered by deliberative process,” she said in an email.

In total, Lee’s administration in 2019 declined to fulfill 13 public records requests after determining they fell under executive privilege, deliberative process or attorney-client privilege. The overwhelming majority of those requests came from news reporters from Tennessee.

Most recently, Lee’s office cited executive privilege, deliberative process and attorney-client privilege after The Associated Press submitted a public records request in December seeking all emails and other pertinent documents surrounding the governor’s recent decision to keep accepting refugees in Tennessee.

“When there’s a reason for privacy — and certainly there are when there is a deliberation on policy or there’s a reason it would not be beneficial to the people of Tennessee to provide information — then certainly that privilege should be used and that deliberative process should be protected,” Lee said Friday.

Presidents have used executive privilege to keep information from the courts, Congress and the public to protect the confidentiality of the Oval Office decision-making process. As in Tennessee, there is no reference to presidential executive privilege in the U.S. Constitution, but the Supreme Court has held that it derives from the president’s ability to carry out the duties the commander in chief holds under the Constitution.

To date, supreme courts in a handful of states have said a governor is allowed to claim executive privilege as a reason to withhold documents from the public.

In 2013, Washington’s state Supreme Court ruled 8-1 that the governor there is allowed to claim “executive privilege” even though that exemption isn’t among the hundreds listed in state law.

However, the court also added that the privilege only applied to communications made to inform policy choices. Gov. Jay Inslee, who took office the same year as the ruling, has not exercised the privilege so far.

The following year, the Oklahoma Supreme Court agreed that the state’s governor had a unique privilege not subject to the state’s Open Records Act.

As in Washington, Oklahoma justices said the privilege could only apply to policy deliberations or making a discretionary decision. However, the privilege could also be subject to review by a judge.

Tennessee’s statutes include more than 500 exemptions to public records, and more exist through case law.

Lee, a first-time politician, vowed to make government more transparent when he took over the top elected office last year.

However, the governor has not yet followed through on a promise to overhaul Tennessee’s public records and open meeting laws that he initially promised during his transition.

And he has no immediate plans to start doing so.

“We are always looking for more opportunities to be more transparent with processes but I don’t have any plans in my legislative package,” Lee said when asked about 2020 and the upcoming legislative session.

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Associated Press writer Rachel La Corte in Olympia, Washington, contributed to this report.

By KIMBERLEE KRUESI and JONATHAN MATTISE

(Photo Robin Rudd/Chattanooga Times Free Press via AP, File)