Members of the Cumberland County Board of Education want a better understanding of their responsibility under Tennessee's open records law following a recent records request.
"There was a lot of confusion, uncertainty and a lot of surprised faces," said Tony Brock, 5th District representative, during the board's Jan. 18 work session.
He asked what board members should do in terms of email messages, text messages and social media contacts.
Board attorney Earl Patton said, "I had never seen this issue, not in all the years I've represented the board. The idea that constituent emails to you might be a public record was surprising."
In December, John Patterson, 9th District commissioner, requested emails Stace Karge, 9th District representative to the board, mentioned she had received from constituents prior to the board voting not to extend a new contract to Director of Schools Janet Graham.
Patterson has asked for copies of the emails.
Karge told the Chronicle she called Patterson after being made aware of his request and asked him to withdraw it. She told the Chronicle on Dec. 14 that she would be OK with release of redacted emails, but the following Tuesday said she had complied with the request. She also told the Chronicle that she deleted emails she considered confidential, such as correspondence with the attorney, upon receipt and turned over the emails that remained.
The matter was referred to the county ethics committee after Karge alleged Patterson threatened her and school funding if she did not change her vote. Patterson denied the charge and noted he does not serve on the county’s budget committee. He said Karge threatened him by saying, “‘the entire community would turn against you,’” Patterson told the committee.
Patterson, in January, said he received 13 of the 37 emails Karge referenced in a Dec. 4 meeting. And, Karge had stated she received only one email in favor of Graham while Patterson said his review of the 13 emails indicated five were in favor of continuing Graham’s employment.
Karge questioned why hers were the only emails requested. Both she and Patterson represent the Fairfield Glade area.
Patton said the school system works with the state Open Records Counsel when there are questions. Tennessee does have exceptions to the open records law, but the key in this case relied on the definition of public records.
Tennessee Code Annotated 10-7-503 defines public records as “all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental entity.”
The Office of Open Records Counsel also issued an opinion on the confidentiality of constituent communications in 2008. That opinion cites a 1999 Tennessee Attorney General opinion that emails sent to members of the Tennessee General Assembly can be public records if they are “made or received … in connection with the transaction of official business.”
The opinion states, “Constituent communications are sent in connection with an elected office and therefore meet this definition.”
Patton said, "If you receive an email that has anything to do with your official business as a board member, technically, anyone is able to make a public records request for copies of those emails.
"In my mind, that has a chilling effect, potentially, for anyone who may email you," Patton said. He added constituents could call their representative or talk in person.
The request from county commissioner Patterson was very specific in terms of what he sought, Patton told board members.
County Attorney Philip Burnett told the county ethics committee email communications are considered public records, whether the official uses a government server or a private email address. He added emails should be kept for five years.
Hamby asked when personal information was redacted from those emails. Patton said nothing had been redacted from the emails he provided as part of the records request.
The Open Records Counsel opinion does state that emails could contain information considered confidential under state law, adding that emails should be reviewed before being turned over and information covered by state law be redacted. However, “access must be granted to the remainder of the email.”
Hamby said, "A lot of people who do contact us are in fear of retaliation."
Patton said representatives could encourage communication other than email in those circumstances.
"I have let all my people know," Hamby said.
Inman said the state offers trainings on open records, but there were not any scheduled at this time.
Patton said the request was unusual, but Rebecca Wood, chief academic officer, handles public records requests and has been trained in that capacity.
Board members asked how they should archive or save text messages, noting they sometimes had to empty their phone's memory due to space limitations. Patton said he would research further information on archiving records.
Patton said, "As long as there is no intent on your part to bypass the law, you do have to actually have a record to provide it."
Board members attending the Jan. 18 work session were Brock, Hamby, 1st District Representative Jim Inman, 6th District representative Tom Netherton and 8th District Representative Teresa Boston.