A public records lawsuit filed in April against Knox County Sheriff Tom Spangler appears to be lurching slowly toward resolution.
After two days of a bench trial on Dec. 9 and Dec. 10, Knox County Chancellor John F. Weaver gave attorneys until Jan. 13 to file final briefs and set Jan. 24 as the day for final arguments before the court.
Conley, a University of Tennessee sociology professor, sought records related to the sheriff’s participation in a 287(g) immigration enforcement program with U.S. Immigration and Customs Enforcement (ICE), which allows the sheriff to detain people who are in the country illegally.
Records sought included:
- Arrest reports;
- Correspondence between certain members of the sheriff’s office and ICE;
- Records regarding an intergovernmental service agreement related to detention, transportation or other services between the sheriff and ICE;
- Correspondence related to the sheriff’s office 287(g) steering committee;
- Data referred to by the sheriff in a public forum that showed the yearly number of inmates in the jail and total yearly number of foreign born inmates in the jail; and
- Other emails mentioning Professor Conley.
Remarkably, no one is contending that the records sought are not public records, and no claims of confidentiality have been asserted. Instead, the sheriff’s office claims that in many instances they simply did not have to look for the records because Professor Conley’s requests were not specific enough. Alternatively, the sheriff’s office maintains, if her requests were specific enough, they were denied because they asked for “any and all” or “all” records related to a particular subject and would have required the sheriff’s office to sort through their entire universe of records to pull out the ones that would meet the specifications of her request. They claim they are not required to do such “sorting and compiling” under the law, and that it is actually prohibited by law. (See Knox County Sheriff’s Answer to Petition.)
These were the main go-to reasons for denying many of Professor Conley’s requests that we heard during testimony and arguments.
Professor Conley testified how she re-worded requests after she got the “specificity” or “sort and compile” denials, and resubmitted. Sometimes she asked the sheriff’s office for help in how to better explain the request. However, in many instances over the year and half of trying, she never found the magic words to shake loose many of the records she sought.
For their part, the sheriff’s office attorney stated more than a few times in court that nothing in the Tennessee Public Records Act requires the sheriff’s office to help the requester in wording their request.
I listened to most of the testimony and arguments in the case, which also included two days in June, and it felt to me as if the sheriff was playing a game with unfamiliar rules where the requester couldn’t get the rule book.
Asking for emails older than 30 days required phrase “archived emails”
This was squarely on display, for example, when Professor Conley on Nov. 19, 2018, asked for email communications mentioning her name for 13 months between August 2017 and September 2018 that were sent or received by three particular employees. She asked the same for emails sent and received by the sheriff’s chief counsel Mike Ruble, but for 15 months between August and the date of her request.
Public Records Request Coordinator, Hillary Martin, replied that the request for emails from the first three employees could not be fulfilled because the “system only retains emails for 30 days.” She said in her reply that she would “get started” on responsive emails from Ruble for the past 30 days.
As it turned out, the sheriff’s office during the trial said they actually do keep emails past 30 days in compliance with its public records retention policy. According to testimony, after 30 days, all emails are deleted (this was hard to believe), but the emails that constitute public records are printed out (it was unclear by whom) and kept as an archive.
However, because Professor Conley did not ask to search the archived emails, Martin testified that she did not look or ask for responsive records among any of the first three employees’ emails because they would have been older than 30 days. If Conley wanted to search the emails older than 30 days, she would have had to request a search of archived emails, not just emails, Martin said.
Conley did not use the magic word “archived” in her request, so the sheriff’s office didn’t search the paper copies of older emails (or electronic if they were not deleted), but did not feel any obligation to tell Conley of the potential existence of earlier emails or their interpretation of her request.
To top if off, we learned in the courtroom that even if Professor Conley had specified “archived emails”in her request, that likely would have not helped either. Martin testified that such a request would have meant she would have had to look through all the printed-out archived emails to retrieve the ones that were responsive. This would be “sorting and compiling,” which she believes is not required by the law. In other words, she would have denied that request, too. That’s contrary to years of interpretation of the law to require that records custodians actually search for records that are responsive to a request.
Was there any way for Professor Conley to get those emails she wanted with her name in them? Martin testified that Professor Conley would have had to request all of each of the employees’ emails sent and received for those 13 and 15 months, not just the ones with her name in them. Then the sheriff’s office would go through every single email, and review them for redactions. Then they would require her to pay all labor charges for this extensive review and redaction, even if she only wanted to inspect the records. Once she paid, she could sort through the entire trove for ones that mentioned her name.
Whether or not these practices and policies even track with the law, what appeared clear to me from the testimony is that none of these options were even explained to Professor Conley at the time.
Knox County sheriff office says it can’t search body of emails
The news that citizens would have to make a public records request for someone’s entire email correspondence, and mention they also wanted archived emails, when they only want emails related to a certain subject was a revelation. I have not run into this before and am not aware of any Tennessee precedent that supports this view. Usually government entities want you to narrow a request by providing key words or certain topics, not broaden it.
Another revelation: The sheriff’s office said that even for emails that had not been deleted, there was no way to electronically search the body of emails for keywords. They testified that they could only search for keywords in the “to” and “from” fields and in the subject line.
We did not hear testimony from the sheriff’s information technology department on this point. Ruble essentially shrugged and explained he wasn’t an “IT guy.”
If the sheriff’s department email system does not allow searches in the body of emails, I think it’s safe to say that’s more of an oddity than the rule. It also seems like it would have implications beyond the inability to search emails to fulfill Professor Conley’s public records requests.
I was told by one of the journalists in the courtroom that the Knox County government can search the body of emails. Most people can search the body of their own email accounts. The assertion that a body of an email cannot be electronically searched reminded me of the Jakes v. Sumner County Board of Education case a few years back. In that case, Sumner County School officials testified it would cost $40,000 a year to set up a phone line and expand voice mail storage in order to allow public records requests by phone, and $20,000 a year for an email address and storage to accept requests by email. The Sumner County Chancellor was skeptical.
One other nugget we learned — and this came into focus from Chancellor Weaver’s questioning of Public Records Request Coordinator Martin — is that when a public records request comes in for email or any other documents, the public records request coordinator often simply asks who she thinks is the custodian of the record to provide any responsive records.
In other words, she doesn’t actually go into someone’s office or into their correspondence and rifle through records to find them herself.
The sheriff’s office maintained that when Professor Conley asked for all records on a particular topic — such as records related to the 287(g) intergovernmental services agreement or communications with ICE — that meant they had to go through literally all records of all 1,100 employees of the sheriff’s department to find responsive records.
Chancellor Weaver at one point asked Martin why she couldn’t just push a button and email all 1,100 employees and ask them for responsive records?
“We would have to make sure everybody responded. Somebody might be off (work),” Martin replied.
Chancellor Weaver pointed out that when she asks custodians for responsive records, she is trusting that they are giving her all the responsive records. How would this be any different?
To me, the arguments seemed circular from the sheriff’s office. But, of course, I’m looking at it from the perspective of getting access to records, which the Public Records Act is supposed to support.
Will Professor Conley’s persistence to acquire public records pay off?
Professor Conley is a scholar. She has published in Journal of Latino-Latin American Studies, American Behavioral Scientist and The Southern Sociologist. She also has written books, including Immigrant Rights in the Nuevo South: Enforcement and Resistance at the Borderlands of Illegality; and Immigration and Population, which was awarded the “Choice Outstanding Academic Title” from the American Library Association. She is currently working on a book under contract with Temple University Press about immigrant rights organizing in the New South.
Her job at University of Tennessee includes being the director of community partnerships in the department of sociology in which she helps community groups “use sociological knowledge and research methods to address critical issues and to facility community-based research opportunities that serve the department’s social justice mission.”
She states on her website that her research examines “the political, economic and ideological systems that sustain structural inequalities for Latinx immigrants, how immigrants resist these structures of power.”
It would not be unusual at all for the sheriff’s department, which operates a politically divisive immigration enforcement program with ICE, to view her as “the other side.”
But in my view, Professor Conley was about as compliant and patient a requester as I have seen, reworking her requests, sending polite emails, asking for guidance. About the only direction she didn’t take from the sheriff’s office was the not-so-subtle message that maybe she should just stop asking. It took about a year and a half of roadblocks before filing a petition in chancery court, which is the only method in Tennessee to enforce the Public Records Act.
She found a newly minted attorney and recent University of Tennessee College of Law graduate, Andrew Fels, to represent her. Her effort to enforce the law, I think it’s safe to say, is not a high-powered, or generously funded effort.
On the other hand, the sheriff had three attorneys sitting at its desk in the courtroom: Ruble, Knox County Chief Deputy Law Director David Buuck and Knox County Deputy Law Director Amanda Morse. These attorneys are funded by a deep well of taxpayer money. Always something to remember in these cases.
Data mentioned in a public forum by sheriff also denied
If there was evidence that the sheriff’s office was willfully ignoring Professor Conley’s requests or even flippantly denying them, it might be found in the lack of action when a request came in.
An example of this was with Professor Conley’s request on July 20, 2018, in which she asked for “documents that show the total yearly number of inmates in the jail and total yearly number of foreign born inmates in the jail from 2009 through the first six months of 2018.” She writes in her request that then-Sheriff Jimmy Jones and Captain Terry Wilshire “mentioned that the jail keeps track of these numbers during a public forum last week.”
Ruble denied this request on Aug. 3, writing, “I was not at that meeting and did not heat[sic] the comments to which you refer. If you could be more specific as to what document you are requesting, this office will be happy to comply.”
A few days later on Aug. 8, Ruble issued a second denial of the request, saying that her “request for ‘any’ documents with total inmate population and total foreign inmates” would require a search of “every document in the K.C.S.O. to determine if it contained those numbers. … We are not required to search our documents for a document that might fit your description. If you would ask for a specific document we would be glad to comply with your request.”
At the trial, we learned that Ruble later realized that the jail data could be queried to produce the data. But he maintained that while those statistics mentioned in the public forum could be accessed through a query of the database, the sheriff’s department did not have to pull it from the database because that would constitute creating a new record, and, he claimed, they aren’t required to do this.
Ruble also said he didn’t consider the July 20 request a request because Conley also in the same email asked for advice on how to make the request.
When Ruble was asked if he had asked the sheriff about the data talked about in the public forum, Ruble said he did not recall. It seems reasonable to conclude that Ruble either did not ask anyone about the data when he received a request for it, which seems negligent, or if he did ask and discovered such data was available, he made the decision to not make it available.
Sheriff’s office deflects requests to access arrest reports
Another example of simply deflecting Professor Conley’s request came when she tried to access arrest reports.
When she asked in August 2017 to schedule a time to inspect arrest reports, the sheriff’s office said they did not “have a system that allows the public to inspect arrest reports” but directed to her to their online site where she could look at arrest reports, but with limits of reviewing 30 a day. They declined her request a second time using the same type of response more than a year later, again saying the only system to look at arrest reports is for law enforcement use only.
During the June hearing, the sheriff’s office admitted that it actually could have provided access to more arrest reports a day than available online. They would have printed them out from their system, reviewed and redacted them for confidential information, and allowed her to look through as many as she wanted.
But they contend that Conley wouldn’t have wanted this option because of the cost. The sheriff’s office said the process would have resulted in charges to Conley for their labor in compiling and redacting the records, even if Conley just wanted to inspect and not get copies.
However it was clear they didn’t tell Conley any of this at the time and even tried to assert they didn’t offer it because Conley would have known about the cost and somehow they knew at the time that she didn’t want that option.
Whether or not charges for inspection are even allowed by law (and I’m not alone in thinking they are most definitely not), it was clear that they still denied the request when they could have provided the records. She didn’t even get to hear the option of paying or how much they alleged it would have cost.
Credibility and reasonableness may play a role in case
Questions about the law’s requirements will certainly be key in this case.
The Tennessee Public Records Act, for example, has language that specifically prohibits charges for inspection — a sentence that was inserted into the law during changes to the Public Records Act in 2008. The sheriff in its reply to the petition cites a section of the law that allows public utilities (not sheriff’s offices) to charge for costs of redactions in certain instances [T.C.A. § 10-7-504(a)(20)(C)]. The sheriff also, in support of its charges claim, actually misquotes on Page 18 of its reply petition the Tennessee statute T.C.A. § 10-7-503(a)(7)(C)(i) about charges allowable under the law by picking up the phrase “notwithstanding any law to the contrary” from T.C.A. § 10-7-503(a)(7)(A)(vii) and skipping over that the charges must be assessed as established by the Office of Open Records Counsel. The allowable charges established by the OORC expressly prohibit charges for inspection.
In regard to access to information in government databases, in Tennessean v. Electric Power Board of Nashville, (1998) the Tennessee Supreme Court said that a government entity that could retrieve information from data through writing a program had to do that in response to a records request. They could not deny the request simply because the data was not arranged in the format requested by the newspaper.
A clearly related issue is the sheriff’s interpretation of “specificity” and “sorting and compiling.” The sheriff’s office draws its reasoning from T.C.A. § 10-7-503 (a)(4) of the Public Records Act, which says:
This section shall not be construed as requiring a governmental entity to sort through files to compile information or to create or recreate a record that does not exist. Any request for inspection or copying of a public record shall be sufficiently detailed to enable the governmental entity to identify the specific records for inspection and copying.
The chancellor, of course, may disagree, but it’s hard to see how the sheriff’s contention that it doesn’t have to search for records under his “sort and compile” interpretation is reasonable in the case of Conley’s requests.
If looking through documents to find the ones that are responsive to a request is sorting through files “to compile information,” how would anyone fulfill a public records request? The very act of fulfilling a public records request would seem to often require looking through documents to find the ones that fulfill the specific request.
While the statute’s language may be open for interpretation in certain situations, my understanding as someone who advises requesters is that it generally means a government entity does not have to sort through files to compile information.
In other words, a government entity does not have to go into every document, and pull out specific information on that document and compile that information for a requester, or create a new record just to answer a question by a requester.
An example of this interpretation was by the Court of Appeals in 2003 in a case involving a prison inmate who asked the Tennessee Board of Probation and Parole for numerous pieces of information from inmate records dating back to 1992. (Hickman v. Tennessee Board of Probation and Parole). The inmate actually didn’t ask for records, a fact the appellate court noted. He asked for information.
The Court of Appeals said that a Public Records Act request “is not a discovery request pursuant to litigation … there is nothing in the Act which would shift to the agency the burden of manually compiling information from thousands of separate records into a new record… We find no language in the Act that would require the Board to go through every parole eligible inmate’s file and retrieve the Risk Factor for each so as to compile that information for Mr. Hickman.”
Of course, the key question here is how Chancellor Weaver views Conley’s requests and the sheriff office’s explanations. What was reasonable? What was credible? Does he think a search for emails that contain Professor Conley’s name — or a search for records relevant to the 287(g) program — so overly burdensome that it somehow triggers a legitimate “sort through files to compile information” denial? How could she have accessed the records she wanted? Would she literally have had to request all records of the sheriff’s department, paid for redaction and review, and sorted through all of them? This seems a bit absurd.
The Legislature has said that the section of the Act dealing with judicial review of denials of access to public records “be broadly construed so as to give the fullest possible access to public records [T.C.A. § 10-7-505(d)].
It’s tough to predict a judge. But it’s worth watching.
If the two main reasons for many of the sheriff office denials — “specificity” and “sort and compile” — are left to stand, I would imagine that access to a whole swath of public records will be effectively cut off.
Journalists, academic researchers and ordinary citizens in Tennessee would be at a new and huge disadvantage — a disadvantage that would be especially acute when someone in the government entity does not want you to have the particular government records you requested.
For news coverage by Knoxville journalists of the June and December hearings, read these articles:
- Pay to see: The Knox County Sheriff’s Office says it can charge labor costs for requests to view public records. Despite long-established state law, a judge may agree. By Jesse Fox Mayshark, June 11, 2019
- For the Records, pt. 2: In a lawsuit trial the Knox County Sheriff’s Office outlines its unusual interpretation of the state’s Public Records Act. By Jesse Fox Mayshark, Dec. 11, 2019
- Open records advocates: Knox County charging for public document inspection is illegal. By Tyler Whetstone, Knoxville News Sentinel, June 10, 2019
- Knox sheriff’s office slammed for ‘shameful’ record keeping system on ICE documents. By Tyler Whetstone, Knoxville News Sentinel, Dec. 10, 2019.
- UT professor and AKIN activist sues Knox sheriff for records on 287(g) deal with ICE, By Matt Lakin, Knoxville News Sentinel, April 25, 2019.