With some pushback, House subcommittee passes bill to allow public records requests by email

The House State Government Subcommittee passed with a voice vote on Wednesday a bill that would clarify the public records statutes to say that citizens could use email to send in their records requests if a government entity already uses email to conduct government business.

The requirement would not apply if the government entity does not use email as an “official mode of communication” in recognition that some small or rural government entities may not have or use email.

State Rep. Courtney Rogers, R-Goodlettsville

The bill’s sponsor, Courtney Rogers, R-Goodlettsville, said the purpose of the bill (HB 58 / SB 464) is to eliminate any ambiguity in the law, and said that email is a common mode of communication used in government. The bill says that requests to inspect records may be submitted “by all official modes of communication, including in person, telephone, fax, email or other electronic means.” It also says that if a written request is required to get copies of public records, a person can deliver the written request in person, by mail or by email or, if available, on an electronic form.

“We’re supposed to be serving the people and make available the ability of people to be able to communicate with us as government,” Rogers said. “This is trying to keep government open.”

(See video from the subcommittee meeting.)

Voting verbally as “aye” for the bill (allowing the use of email) were State Rep. Bob Ramsey, R-Maryville, State Rep. Bud Hulsey, R-Kingsport and State Rep. Darren Jernigan, D-Nashville.  State Rep. Bill Sanderson, R-Kenton, and State Rep. Mary Littleton, R-Dickson did not appear to verbally vote. Under normal practice, those votes would be recorded as “ayes.”

Sanderson, who is chair of the subcommittee, said the bill was one of the reasons the mayor of his hometown was at the Legislature that day, and said that some local governments prefer to not accept email.

State Rep. Bill Sanderson, R-Kenton

“Do you think that the locals might believe that the ease of email might lead to more frivolous requests for records?” Sanderson asked Rogers.

Rogers replied that she did not think email would lead to frivolous requests, and said that people ask to see public records for specific reasons.

Sanderson also said that some local governments prefer to have records requests hand-delivered or through the U.S. Postal Service because it requires more effort on the part of the citizen, requiring them to be more pro-active, “rather than just sending a quick email.”

“The opposite point of that is you are inconveniencing the citizen greater who is trying to get information from the government that they pay for,” Rogers said.

Jernigan said that he had mixed views on the bill because he generally likes local control, but said that he was concerned about hardships people faced that could prevent them from coming in person to make a request.

State Rep. Darren Jernigan, D-Nashville

“I do know individuals with severe disabilities and the only communication they can do is by email. They can’t write, but they can speak into their computer and do email. They don’t have transportation,” Jernigan said.

Hulsey commented that “This is just a simple thing actually. It just says that most folks are using email now, more than we’ve ever done before. You’ve got some places that don’t like to take email and they want the request in a particular way. And so we’re going to codify that email is one of the accepted ways to make your request to get copies of records… that’s the long and short of it, isn’t it?”

Ramsey noted that he sits on the Advisory Committee on Open Government, and that the comptroller’s office had put together a best practices and ideal policy, and left discretion to the government entity on whether they would accept public records request by email.

“Is there a purpose to deviate from that ideal practice?” Ramsey asked Rogers.

“We are not deviating from an ideal practice,” Rogers replied. “The ideal practice is to make the records as available and as much as possible. We’re defining that a written request can be handwritten or (sent) by email.”

“We’ve had problems in our county….they were using the term ‘written’ to not serve a request by email,” Rogers said.

Rogers was referring to a lawsuit in Sumner County where the school district denied a public records request to a citizen because he made the request by email and telephone. The school board said that a citizen must appear in person, or send a letter via U.S. Postal Service to make a request.

The citizen sued and won at the trial court level, with the judge ruling that the school board violated the Tennessee Public Records Act in denying his request. The school board appealed the ruling, and has argued that because the state’s statutes do not specifically state that a government entity must recognize a request received by email, they do not have to. (The Tennessee Coalition for Open Government filed an amicus brief in the case at the appellate level, with support from the Society of Professional Journalists Legal Defense Fund.)

The bill, which was amended slightly, now goes to the House State Government committee, which has 10 members, including State Rep. William Lamberth, R-Cottontown, also in Sumner County. That meeting is scheduled for noon, Tuesday, Feb. 21, in Room 29 of Legislative Plaza. The amendment allows a request for copies to be on a form developed by a local government entity in addition to a model form developed by the Office of Open Records Counsel.

State Sen. Mike Bell, R-Riceville, is carrying the legislation in the Senate. It is not yet been placed on the schedule of the Senate State and Local Government Committee.

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