The Tennessee Coalition for Open Government has filed an amicus curiae brief with the Court of Appeals in Nashville in a case in which the Sumner County Board of Education argues that government entities do not have to accept a public records request sent by email.
The case stems from a public records request made by citizen Kenneth Jakes in March 2014 to inspect the Sumner County Board of Education’s public records policy. The school district denied the request, saying the method in which Jakes made the request — by email and a followup phone call — did not meet their requirements. Jakes was told he had to mail the request through the U.S. Postal Service, or make the request in person. Jakes sued.
A Sumner County judge ruled in Jakes’ favor, saying the school district should have responded to the request, which it could have done quickly by emailing back a link to the record because it was online.
The school board voted to appeal the judge’s decision. It contends that the Tennessee Public Records Act “does not categorically require all state and local government entities to accept electronic requests to inspect public records.” Instead, they argue, each entity has the authority to decide whether or not it will accept a public records request sent by email.
TCOG filed its motion on Wednesday in the Court of Appeals in Nashville seeking permission to file an amicus curiae brief in the case and additionally filed the amicus curiae brief at the same time. The Society of Professional Journalists Legal Defense Fund provided financial assistance for TCOG’s legal effort, with support from the Middle Tennessee Professional Chapter of the Society of Professional Journalists.
Read TCOG’s brief: TCOG’s brief in Kenneth Jakes vs. Sumner County Board of Education.
“The public’s right of access to public records is very broad, and the (Tennessee Public Records Act) does not allow a government agency to establish rules that would inhibit the disclosure of public records for inspection,” TCOG’s brief says.
“The TPRA requires government entities to make records available for inspection ‘promptly’ after the request is made. The TPRA does not limit the manner in which a citizen may submit to a government entity the citizen’s request to inspect a public record.”
The brief was prepared by attorneys John Williams of Tune, Entrekin & White, P.C. in Nashville, and Rick Hollow of Hollow and Hollow of Knoxville. Both attorneys are on TCOG’s board of directors.
“Mr. Jakes’ request was ‘sufficiently detailed’ to enable (Sumner County schools spokesman) Mr. (Jeremy) Johnson to identify the public record he was asking to inspect. The Board’s Public Records Policy was not exempt from disclosure. There was no need to review the record to determine whether it contained any confidential information that needed to be redacted. Under these circumstances, the Board had an obligation under Tenn. Code Ann. 10-7-503(a)(2)(B) to make this public record available for inspection by Mr. Jakes ‘promptly’ after receipt of his emailed request.”
“The TPRA does not specify all the ways in which a citizen may transmit a request to inspect a public record. However, Tenn. Code Ann. 10-7-503(a)(7)(A) states that a records custodian ‘may not require a written request … to view a public record.’ By using this language, the General Assembly obviously intended that a records custodian should comply with requests made in all reasonably available ways, including email.”
The school board also argued that a government entity has seven business days to make a record available for inspection. “This is a misstatement of the law,” says TCOG’s brief. “Tenn. Code Ann. 10-7-503(a)(2)(B) allows a government entity seven days only when ‘it is not practicable for the record to promptly available for inspection.’ In this case the Public Records Policy should have been made available for inspection ‘promptly.’ ”
TCOG also takes aim at the board’s claim that the Office of Open Records Counsel “has issued an advisory opinion that custodians are not required to accept electronic requests.”
TCOG’s brief says there are only two questions and answers on the OORC website which pertain to the manner in which records are requested, neither of which state that a custodian can reject a public records request for inspection made by email. (No advisory opinions about emailed requests are listed under the Opinion section of the Open Records Counsel website.)
“The Board’s ‘public policy’ arguments border on the ludicrous. The Board’s argument that email requests are not secure because of the risk of computer viruses and spam is belied by the overwhelming use of email communication in the business world, as well as the mandated use of email to file pleadings in the federal court system…
“The Board’s argument that email requests for public records ‘tend to get lost or overlooked more easily than paper copies’ is, if true, a sad commentary on the employees of the Sumner County Board of Education. The argument that an email requesting records might be sent to the wrong person or the wrong email address has no merit, since a request sent by U.S. mail might just as easily be sent to the wrong person or the wrong postal address.
“The Board’s argument that email correspondence is ‘less stable and official than written or in-person communication’ ignores the manner in which lawyers and business persons communicate with each other on weighty matters every day of the week.
“The Board’s argument that ’email requests would be costly’ cannot possibly be an argument made with a straight face. If the Board were not already equipped to communicate through the use of email, the Board’s argument might have some merit. But the Board’s employees — as do the employees of school boards across Tennessee – use email every day to communicate with each other and with the outside world. The notion that email should not be used to receive public records requests is patently absurd as a matter of public policy.”
TCOG also addresses arguments made by five organizations “purporting to represent the interests of local school boards and local government entities” that have filed amicus briefs. Those organizations are the Tennessee Risk Management Trust, the Tennessee Organization of School Superintendents, the Association of Independent and Municipal Schools, the Tennessee Municipal League Risk Management Pool, Inc., and the Tennessee School Board Association.
TCOG argues that a decision by the appellate court on the issue will assist school board officials across the state and other public officials in understanding whether they must comply with email requests to inspect public records. And it notes that the Sumner County school board has expended public funds in litigating the issues in this case — funds that other school boards would potentially have to expend if the Court does not settle the issue. (Read: The Tennessean: Sumner Schools legal bills climb to $113K in public records case)
“TCOG urges this Court to hold that the TPRA requires the Board and all other local government entities to accept and respond to requests to inspect public records which are submitted by email.”