The Sumner County Board of Education blames the Office of Open Records Counsel for bad advice that led it on a journey of spending almost $250,000 of taxpayer money to defend, then appeal, a public records lawsuit that it lost.
“We are disappointed that the court decided that the board’s former policy did not comply with a 2008 version of Tennessee’s public records statute, especially because the Office of Open Records Counsel, which has the legal duty to interpret the act, informed the board that its policy was lawful and that its response to Mr. Jakes’ request was appropriate under the law,” a statement reads. “The board could not have predicted that a court, three years later, would disagree with the Office of Open Records Counsel’s advice.”
An appellate court recently upheld a trial court’s decision that the Sumner County school system violated the Tennessee Public Records Act when it denied citizen Ken Jakes’ request to inspect the board’s public records policy because he had made the request through email and a followup phone call. After losing at the trial level, the school board voted to appeal.
The school board’s attorney, Jim Fuqua, had testified in court that he called then-Open Records Counsel Elisha Hodge and her advice confirmed to him that the school board could deny records requests received through email. Hodge had been scheduled to testify about what she told Fuqua, but did not and apparently was out of town the week of the trial.
The advice Hodge gave was not recorded in any email or letter. And it wasn’t a written advisory opinion, which the Office of Open Records Counsel is authorized to give and would have included the legal reasoning behind any opinion.
Still, Fuqua’s testimony that he somehow had gotten clearance from the Open Records Counsel led the judge, and then the appellate court, to determine that the school board’s action was not “willful,” thus Jakes was not entitled to receive his attorney’s fees reimbursed.
What the Office of Open Records Counsel told Fuqua has always been a mystery to me. It is hard to imagine Hodge giving permission to deny a public records request based on the form in which the request was received. The law, even before updates in the past legislative session, doesn’t even come close to allowing for that – which both the trial court judge and appellate judges recognized. And it certainly didn’t make sense in this case, when all the government entity had to do was email a link to the policy, which was online, to Jakes.
Is it too speculative to ask if the office was under undue pressure to give the answer that the Sumner County Board of Education attorney wanted to hear? Or perhaps Fuqua heard what he wanted to hear, which may not be exactly what Hodge said?
It is clear that once the Sumner County lawsuit was under way, the Office of Open Records Counsel under the new leadership of counsel Ann Butterworth (Hodges left for another job), refused to include in its new model policy and best practices that requests received by email be honored. TCOG saw policies at the local level saying people had to appear in person or send requests via the U.S. Postal Service to make requests, a burden that adds days to the process. And it’s what prompted this organization to support a law change to explicitly state that a citizen could make a public records request by email.
However, in the end, if the Office of Open Records Counsel indeed so misread the law in March 2014, and is now to be blamed for the school board’s vigorous but fruitless $247,000 defense of such interpretation, let’s hope the Open Records Counsel, going forward, pays more attention to the part of the statute that says: the Tennessee Public Records Act “shall be broadly construed so as to give the fullest possible access to public records.”