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What the law says

Tennessee Code Annotated

10-7-512. Electronic mail communications systems

Monitoring of electronic mail communications - Policy required. -

(a) On or before July 1, 2000, the state or any agency, institution, or political subdivision thereof that operates or maintains an electronic mail communications system shall adopt a written policy on any monitoring of electronic mail communications and the circumstances under which it will be conducted.

(b) 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.

10-7-503 Records open to public inspection

"Public record or records" or "state record or records" means all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency.

Some local officials think the state Legislature should clarify whether all e-mails sent on public computers are public records.

Hamilton County Mayor Claude Ramsey said the issue likely will surface when the county holds a meeting with its legislative delegation in December. Some members of that delegation also think the state should clarify the portions of the law that recently came into dispute in Hamilton County.

State Rep. Vince Dean said it "makes sense" that any e-mail sent on a public computer would be a public record. But the law itself does not address the issues that have muddied its interpretation.

"Any time you've got a law that's in place, it needs to be clear enough the average citizen can pick it up and read it," Dean said.

Ramsey in October suspended public works employee Alan Knowles for five days without pay after the Chattanooga Times Free Press obtained e-mails that showed he conducted his private Christian Concerts business on county computers, using county e-mail accounts.

Afterward, County Attorney Rheubin Taylor said those e-mails were "personal" and not considered a public record. Since Knowles was suspended in October, the county has denied Times Free Press requests for another employee's e-mails.

But Frank Gibson, the executive director of the Tennessee Coalition for Open Government, disagrees with the county's position. In a recent column, he argued that the law dealing with e-mails sent to and from public computers shows the Legislature clearly intended for them to be public records.

"One thing is clear; there is no guarantee of confidentiality and no legal expectation of personal privacy in the [Tennessee law]," Gibson said. "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."

Greg Sherrill, executive director of the Tennessee Press Association, said the organization agrees the issue should be examined, but added, "We really haven't taken a stand on that."

"We've been so busy fighting all these multiple attempts to ... keep public notices out of newspapers," he said.

There is one court case dealing with the issue of public and private e-mails. In Ed Brennan v. Giles County Board of Education, the court held that "personal" or "private" e-mails fell outside the state's definition of a public record. But the portion of the state's law concerning e-mails does not mention "personal" e-mails or a definition of what types of e-mails would fall into that category.

"It is impossible to lay down a definition of general application that identifies all items subject to disclosure under the act," the court ruled. "Consequently, the classification of items which fall midway on the spectrum of clearly public records on the one end and clearly not public records on the other will have to be determined on a case-by-case basis."

Ramsey said he has mixed feelings about whether all e-mails should be public records.

"My personal feeling is I'm not sure everything on there is public," Ramsey said. "I don't control who sends me what."

State Sen. Andy Berke also had doubts.

"We want to make sure that we have an open, transparent government," Berke said. "That's what our laws have been designed to do, and it's what our goal has been in the past. We also want to make sure that certain issues that are more confidential remain that way."

Richard Beeland, spokesman for Chattanooga Mayor Ron Littlefield, agreed the law could be clearer.

State Rep. Jim Cobb, R-Spring City, said he was unfamiliar with the Hamilton County incident, but that "anything that's controversial or draws controversial remarks needs to be revisited for clarification."

Contact staff writer Dan Whisenhunt at dwhisenhunt @timesfreepress.com or 423-757-6481. Follow him on Twitter at http://twitter.com/DWhisenhunt.

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