In Tennessee, the Office of Open Records Counsel has made clear that emails sent by government officials discussing government business, whether sent from a government account or a private account, are subject to the Tennessee Public Records Act.
A judge’s ruling earlier this year in a lawsuit over Knox County government emails underscored the issue of open access, though it took the Knoxville News Sentinel one and half years to prevail.
In talking with reporters in the past three or four months, I think the more thorny issue is how difficult it is for anyone to know private email accounts are being used for public business — and, then, how a governmental entity goes about fulfilling a public records request that involves a private account.
If you’ve got a reason to request emails about a particular topic during a particular time frame, I’ve advised reporters to make clear that they are requesting emails sent from either a government-issued account or a private account, since both are public record. It flags the governmental entity that it needs to check both if it wants to be responsive to the request.
But who is responsible for going through those private emails to see if any are responsive to the request? The individual holding the account? Or a separate person within the governmental entity? If it’s a governmental account, most governments require emails to be kept for a certain period of years. But what about guidelines on a private account used for government business? It’s a nest of questions, and few cities have policies dealing with these public records that essentially are in the hands of an individual.
The issue is coming to a head in California where the state’s Supreme Court will consider a case. The city of San Jose has argued “that cities having to turn over messages from private devices would face significant administrative challenges in complying with records requests,” according to an Associated Press story published in the San Francisco Chronicle.
On the other hand, allowing private emails (or texting messages) to conduct government business without being subject to the open records laws of each state essentially allows subversion of those laws. A story written by another Associated Press reporter, Jack Gillum, after the Chris Christie bridge scandal offered a window into how shadow email accounts can be used to hide public records from media and the gap in public policies to deal with them.
An excerpt from the AP story in California:
While 26 states view the use of private emails for government business as public records, California and the rest have no clear rules or prevailing case law — a source for continuing turmoil in state courts, according to the Reporters Committee for the Freedom of the Press.
The case the California Supreme Court agreed to consider Friday began when environmental activist Ted Smith was denied access to messages sent on private devices through private accounts of the San Jose mayor and City Council members. He filed a lawsuit and a trial judge ordered San Jose to turn over the messages. But an appeals court ruled in April that electronic communications sent and received by public officials on their own devices are not public records regardless of the topic.
The city of San Jose is backed by the League of California Cities, which argues that beyond the legal issues, cities having to turn over messages from private devices would face significant administrative challenges in complying with records requests. City officials say they are concerned an adverse ruling will make them responsible to track the electronic communication on private devices of 5,000 city employees, creating potential compliance problems.
Several news companies and free speech organizations have formally sided with the environmentalist’s lawsuit seeking the records. They argue that exempting emails sent privately about government business runs contrary to the spirit of California’s Open Records Act, passed in 1968. The advocates argue that policies and procedures can be developed to safeguard officials from embarrassing disclosures of their private lives.
I should note that in Tennessee, not all email sent or received by government officials is subject to the Tennessee Public Records Act. The law says a public record is any record made “in connection with the transaction of official business by any governmental agency.” So that joke emailed by a government official to his wife? Nope, that’s not.
– Written by Deborah Fisher, executive director of Tennessee Coalition for Open Government. She can be reached at firstname.lastname@example.org.