published Sunday, November 14th, 2010

Government e-mail should be open to scrutiny

The question of which government e-mail is public record and which is not keeps popping up -- most recently in the oddest of situations.

The first time I remember e-mail being an issue was eight to 10 years ago when members of a suburban Nashville school board were suspected of using their taxpayer-funded e-mail accounts to discuss public business. Officials balked at releasing the e-mail until a newspaper attorney got involved.

When 1,500 e-mails were finally released, the closest reporters got to proving that suspicion was one school board member making catty and personal remarks about another member. Not even close, but fear of such public embarrassment is the real reason some public officials make it hard to get e-mails.

There is some real hypersensitivity on the issue.

When members of the General Assembly got their first state-issued laptops, the state attorney general admonished them not to put anything in an e-mail "you wouldn't want to see on a billboard the next day." Since then, some legislative employees have gotten in hot water by circulating controversial and politically embarrassing e-mails.

'Personal' vs. 'official'

As the issue has evolved, a legal distinction has emerged between "personal" e-mails sent or received on government devices and communications dealing with "official business." That has slowed a lot of requests.

The issue came up most recently in Hamilton County, where a reportedly well-connected county employee was suspended five days after the Chattanooga Times Free Press reported he had conducted private business on the county e-mail system.

To his credit, the employee actually gave the e-mails to the reporter in response to a public records request. Since then, the county attorney has argued the e-mails should not have been released because they were not really public records. The Associated Press reported it this way: "CHATTANOOGA -- County employees' private business e-mails on county computers are not public ... ."

The county attorney was quoted as saying, "Despite what the county may have said, in view of what we now know the law provides, we are now going to respect county's employees' 'personal' information and communications ... and it will not be released."

The statement came after the attorney discovered a 5-year old state Court of Appeals decision that parsed the law officially for the first time.

The Hamilton County employee manual says all e-mails are county property. "... [U]sers should be aware that all data they create on county systems remain the property of Hamilton County. Management does not guarantee the confidentiality of employees' personal information stored on any device belonging to Hamilton County. Any information stored or sent from a Hamilton County personal computer may become public to the detriment of the user and/or the county."

That's a fair statement and a policy designed to discourage employees and officials from putting strictly personal information in e-mail or abusing the system for private purposes. It follows both the legislature's intent and the letter of the law.

The relevant part of the Tennessee Public Records Act, T.C.A. 10-7-512, says, in part, that all e-mail "may be a public record under the public records law and may be subject to public inspection ... ."

It's clear that e-mails fall under the legal definition of a "public record" -- that part of the records law that says a public record is anything "made or received" in connection with "the transaction of official business."

Clear rules

One outraged editorial writer in West Tennessee opined that the legislature should take up the issue when it reconvenes next year and make it clear that anything created on taxpayer time, on taxpayer equipment and at taxpayer expense ought to be public. Other papers picked up the editorial and ran it.

You would expect anyone who takes his or her government watchdog role seriously to make that argument. It can be argued that's what the legislature intended when it passed 10-7-512 in 1999.

The rub came in that 2005 state Court of Appeals decision in a case in which a Giles County resident sought the e-mail and list of websites visited by a schools employee. The court said the only e-mails he was entitled to see were those dealing with official business.

In that case, the trial judge took the records in question and reviewed them privately before ruling that they didn't fall within the definition of a public record.

The appeals court agreed. It also cited, ironically, another section of the Public Records Act: "In construing the Public Records Act, we are guided by the General Assembly's directive that the public records statutes are to be broadly construed so as to give the fullest possible public access to public records."

Then quoting two state Supreme Court decisions, the appeals court noted: "In deciding whether the records are subject to public disclosure, we must be guided by the clear legislative policy favoring disclosure. Thus unless it is clear that disclosure of a record or class of records is excepted from disclosure, we must require disclosure even in the face of 'serious countervailing considerations.'"

The court noted that the law refers to records being public "unless otherwise provided by state law" but made no mention of the 1999 state statute that says: "On or before July 1, 2000, the state or any agency, institution, or political subdivision thereof that operates or maintains an electronic mail communication system shall adopt a written policy on any monitoring of electronic mail communications and the circumstances under which it will be conducted."

"The policy shall include a statement that correspondence of the employee in the form of electronic mail may be a public record under the public records law and may be subject to public inspection under this part."

Public records

The statute doesn't say, "subject to inspection by management." It says, "subject to public inspection." Remember, the court said, "Thus unless it is clear that disclosure of a record or class of records is excepted from disclosure, we must require disclosure ... ."

The appeals court never addressed that, probably because the question of "personal privacy" of public employees was never brought up by the attorneys. The decision turned strictly on the definition of a public record, ignoring the question of why the legislature included the "may be a public record" and "may be subject to public inspection" language.

It appears to recognize that the taxpaying public is the ultimate "management." One thing is clear: There is no guarantee of confidentiality and no legal expectation of personal privacy in the language of 10-7-512. The statute doesn't say e-mails must be released. It says "may be," which means there's no reason they couldn't or shouldn't be open -- even to avoid embarrassment.

Frank Gibson is executive director of the Tennessee Coalition for Open Government -- a member-supported nonprofit, nonpartisan organization. He can be reached at fgibson@tcog.info or at 615-202-2685.

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