PDF: Brennan v. Giles opinion
Hamilton County's attorney claims that an employee's e-mails released to the Times Free Press and resulting in the employee's suspension were personal and should not have been made public.
He also said the media could not receive copies of other e-mails that do not meet the state definition of a public record.
But a state open-government expert disagrees and said the county's own policy makes employees aware that what they do and say on county-owned computers could be made public.
E-mails requested from the county and received by the Times Free Press show that Public Works employee Alan Knowles routinely handled work for a side business, Dove Ministries Inc., using his county e-mail account on county time.
General Use and Ownership1) Users should be aware that all data they create on county systems remains the property of Hamilton County. Management does not guarantee the confidentiality of employee's 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.Source: Hamilton County Employee Handbook
As a result of a front-page story in the Sept. 29 Chattanooga Times Free Press, County Mayor Claude Ramsey last Wednesday placed Knowles on five-day unpaid suspension, and the county's auditor has contacted the Tennessee Comptroller's Office about the matter.
Knowles' suspension ends today.
County Attorney Rheubin Taylor said he has told other county offices that e-mails considered "personal" in nature are not public record, an opinion based on the most recent interpretation of the state's open records law.
However, the county employee handbook reads, in part, "any information stored or sent from a Hamilton County personal computer may become public to the detriment of the user and/or the county."
"The word 'may' is operable," Taylor said. "Despite what the county may have said, in view of what we now know that the law provides, we are now going to respect county employees' 'personal' information, communications ... and it will not be released."
Frank Gibson, executive director of the nonprofit Tennessee Coalition for Open Government, said the county's policy puts county employees on notice about their electronic communications.
"There's no expectation of privacy, therefore all e-mails should be public," Gibson said.
Gibson said he thinks that, under county policy, officials cannot deny access to personal e-mails sent to and from county computers.
Elisha Hodge, the state Open Records Office counsel, disagreed and said personal e-mails would have been exempt under the state's public records law. Under that interpretation, the public would have had no way of knowing about Knowles' side business.
She added she had not seen the Knowles e-mails and was not giving an opinion about whether they met the definition of a public record.
In her view, she said, the county's policy pertains more to whether the employer - in this case the county - can see the e-mails.
"Even if they have an acceptable use policy, it does not say that they will (be made public)," she said. "It says that they may."
Hodge provided a 2005 opinion in the case of Ed Brennan v. Giles County Board of Education, which determined that certain e-mails were not public record. The Tennessee appellate court found certain e-mails did not meet the definition of a public record because they were not "made or received pursuant to law or ordinance or in connection with the transaction of official business."
She also provided a 2010 opinion from a case in Michigan, which has a similar public records law to Tennessee that deals specifically with acceptable use polices. In Howell Education Association v. Howell Board of Education, the court found the school system's acceptable use policy did not mean personal e-mails were automatically subject to records requests.
Hodge said the state does not have a definition of what a "personal" e-mail is; the only thing the state defines is what type of e-mail is a public record.