dear mr.putz@openrecords.com

Have you ever encountered a disagreement or situation – wherein the answer is so glaringly obvious and simple, you couldn’t provide it because you were struck mute by the profound lunacy of the argument?

Here is an example:

Knox County Mayor Mike Ragsdale requested Knox County Commissioner Victoria Defreese’s email correspondence after she’d stated that “countless” citizens had expressed concerns about the infamous county audit. Defreese is reluctant to submit this correspondence because she is unsure these emails are covered under the Open Record laws. Therefore, she intends to seek to AG’s opinion on the issue.

Here’s what I have to say about it, “………… “
Oh, pardon me, I was speechless there for a moment.

Now, as I understand it, most folks claim the request is nothing more than political retaliation. Apparently, Ragsdale and Defreese aren’t the best of friends. Awhile back, Mayor Mike burned the Commish’s library board. The Commish took revenge by putting the mayor’s butt in the hot seat over the p-card spending. So, most assume this is just one more shot fired. Perhaps. But does motive make a difference? Absolutely not.

If the emails were sent to a public official regarding public business or were otherwise related to this person’s official duties – then, yes, this is a public record. The law applies.

Blogger David Oatney disagrees. He states:

…most citizens likely have a reasonable expectation that if they communicate with an elected official, their letter will not be spread around to people they did not correspond with without their knowledge.

David is right, of course. Most citizens do have that expectation – but I’d have to argue that it is not a reasonable one. If you send a letter to your Alderman, Congressman or State Senator, you would expect this, as well as a copy of their response, to be a part of public record. (You can also expect to be placed on their spam list, which means you will start receiving updates about America’s impending Energy Crisis and how only Republicans can fix it.)

Why would eliminating the paper and stamp change anything?

To be fair, Knox County isn’t the only governing body trying to adjust to modern technology. Email issues are actually popping up throughout the country.

Detroit Free Press reports that members of Detroit Mayor Kwame Kilpatrick’s staff launched an e-mail campaign to encourage Detroiters to “push back” against what they contend is unfair media coverage of the naughty mayor. The e-mails were sent from personal accounts during private time – but urged folks to respond via city hall phones and fax machines. Question: Is this misuse of city equipment?

In Wisconsin, Oshkosh Northwestern, a regional newspaper, made an open-records request for all eMail messages between the schools board and its constituents regarding district boundary and consolidation plans. When the paper received only 470 messages, it asked the state attorney general’s office whether eMail correspondence should be regarded as a matter of public record. Response: Attorney General Jim Doyle said unequivocally, yes.

Washington, Virginia, Texas, and Ohio have similarly found e-mails sent to or composed by a government official (even on a personal account) can be public records when they concern government business.

Michigan public records law relating to e-mail are not as firm: but depend upon the the function and content of a record in determining whether it is a “public” document.

Florida law does not require disclosure of personal e-mails.

The Phoenix (AZ) City Council routinely uses private e-mail accounts to conduct public business, blurring the line between public records and personal affairs and raising concerns about transparency in government.

Council members use personal, Web-based accounts to arrange meetings, discuss neighborhood issues and craft responses to constituents. One council office directed staff members to send all e-mails about controversial issues to an AOL account – and later email a code to the city account.

Question: is this a violation of public trust?

Clearly, if emails pertaining to official business were to be exempted from open records laws – this is going to cause problems. What, then, will prevent leaders from using electronic communication to evade the strictures of open-meetings laws, under-the-radar decisions and clouding up our so-called transparent government?

I realize many of us do have a false sense of security when it comes to e-correspondence, but honestly, this is insane. Written word in any form is easily reproducible and can be distributed. If sent electronically, the possibility it will be shared, exchanged, scattered, spread, posted, and passed increases tenfold.

For this reason, we must always be mindful of what we write – or as in my case, you can kick yourself for not starting those previously-written letters to public officials like this:

Dear Honorable Mayor,
I hope your rash has cleared up…

Or

Mr. Hawkins County Schools Central Office Man,
Although most of the other moms think you’re a real wanker…

6 thoughts on “dear mr.putz@openrecords.com

  1. I have to disagree on this one.

    I’ve submitted comments on bills during the public commenting period, and my comments were published. I expected that because that is the purpose of the public commenting period.

    I have also written privately to my representatives about various issues. They have not published my letters, and if they did do so, I would consider it to be not just a violation of my privacy, but copyright infringement as well. I would also consider it a violation of privacy if they taped my phone calls and personal face to face discussions with them and posted them on web sites, claiming it to be a public record.

    I am NOT a public official myself, therefore my personal private correspondence is NOT a public record.

  2. While your elected official may not have published those letters, constituent correspondence usually is considered a matter of public record – unless it contains information exempted by other laws/regulation – such as medical information, would violate attorney-client privilege, etc.

    Some states do offer more leeway by finding communication from a constituent that clearly implies by its nature or content that the constituent expects that it is confidential may be exempted – or depending upon content: does it contain facts or request a specific action? However, since these communications must be examined for purposes of classification: they aren’t truly private either.

    And no, you are NOT a public official; however, your correspondence with a public official regarding public matters may likely fall outside the realm of personal and private. communication.

    If you’re talking about the BBQ next week and how you hope SB#xxxx because that Senator who introduced it is a Schmuck – this might be personal. If you’re talking about SB#xxx, why it is workable/unworkable, how it will affect you and you urge this person to vote for/against said bill being presented – public. Anything less would lead to scores of representatives from special interest groups, etc. having “personal and private” communications with lawmakers.

    So, if we consider this argument has been made and settled in regards to ink and paper: your argument against email as public record would require reinventing the wheel.

    And copyright infringement? This argument would not likely fly for any number of reasons.

  3. I do agree with you written letters and email are similar enough.

    I do not agree you have substantiated your various legal opinions:

    * that Tennessee has the same legal perspective as Washington, Virginia, Texas, and Ohio
    * that constituent letters necessarily ‘concern government business’ in the same sense as the cases you are citing (would be helpful if you could mention them). Contractors refurbishing the state capital – yes that is government business.
    * that copyright law is irrelevant

    Council members communicating with each other is a different issue, a red herring. Correspondence BY public officials in their official capacity should be a public record. Government officials mailing to discuss government business is of course government business.

    What you are proposing here is undemocratic even if 4 other states do it. It has a chilling effect on democracy and free speech. Private constituent letters should be protected and private, as if they are under attorney/client privilege – which our relationship with our lawmakers approaches. And also, as our votes, which are our private political opinions expressed, are private and not publicized.

    It’s 1950. Joe Smith is thinking of writing his representative to say that he supports desegregation and equal rights in Tennessee. Joe’s neighbors are KKK members. Joe has just been told that his letter to his representative is a public record that may be published and can be read by his neighbors. Joe doesn’t send the letter. Joe’s representative later “I can honestly say that not a single constituent has contacted me to support desegregation.”

    Is this what we want?

  4. No legal opinions presented here, Deborah, just a general assessment of how laws are leaning as we grapple with e-governance. And I’d guess this logic isn’t limited to the four states I’ve listed – you could likely find more. Also, not citing case law: but state regs regarding email as public record.

    Most states have exemptions for issues related to discrimination and sexual harassment – Ol’ Joe might fall in this category. I don’t disagree that there are many shades of gray, which are going to be hard to address: nevertheless, exempting all email is dangerous ground.

    Now, TN-wise, the only official document addressing the issue of email (to the best of my knowledge) is from back in 2005. http://www.tn.gov/attorneygeneral/op/2005/OP/OP99.pdf

    Personally, I don’t consider this much of an opinion but more of a convoluted statement, which means – “Hell if we know, guess it could go either way.” Therefore, it’ll be interesting to see which direction the AG’s ruling on the Defreese mess will go: forward or backwards.

    Quickly before our bedtime story: copyright infringement: technically anything you write is copy protected – however, I presume you would not register your letter as a literary work: so this decreases the odds of a successful challenge right off the bat. Add to this reasonable expectation, question of whether sending a letter qualifies as a transfer of rights/ownership and add the fair use doctrine (particularly as it applies to criticism, news reporting, and edu uses) I’d say you’d stand to lose a whole lotta money whilst you get your hiney kicked in court.

    And that’s just my opinion, you know, not a legal one.

  5. Thank you very much for the link to the AG’s letter, that is very interesting!

    It does seem that it is not settled, but I see that the Attorney General does exempt “correspondence with a committee or member of the General Assembly or information supplied to a committee or a member of the General Assembly by an individual who requests confidentiality”.

    That would seem to mean that those constituents who know about this opinion letter could write ‘confidential’ on their emails or letters, and that would restrict disclosability. Or so it seems, it later explain that they have the authority to withhold from the public record, not that they are required to do so.

    There is also this: “Depending on its content or other circumstances, an e-mail could also be confidential under some other provision of Tennessee statute or an applicable common
    law privilege.” I guess that is just a generic statement that means “plus anything I haven’t thought of”, though he does mention “Tenn. Code Ann. ยง 10-7-504″ which I couldn’t find directly, but I found references to and it says that unlisted telephone numbers, bank account info, SSNs, DL info, TBI investigative records, medical records of patients in public hospitals, and probably a bunch of other things are confidential.

    (Hm, while searching I just ran into the AG’s Opinion No. 08-77 on that handgun confidentiality thing you mentioned the other day.)

    Ah well. I guess I will get over to the office store and get one of those big red stamps that says ‘confidential’. Hee hee.

  6. This issue is a bit trickier than if an office or agency had possession of email records.

    Generally no, I do not see how a balance between privacy/transparency could be achieved by extending open record laws to cover personal email. Despite my inherent lack of trust in the system, I do realize politicians must have some level of privacy.

    I do, however, think there are exceptions to this rule: For instance, if you were suspected of wrongdoing (such as having public business diverted to a private account for the purpose of skirting open records/meetings law) then a formal complaint should be filed and investigated – with emails reviewed by an unbiased third party.

    Another exemption would be (and applies to this particular case) Defreese brought the constituent emails into public discussion: she acted citing the emails as incentive, encouragement or influence – so as far as I am concerned, regardless of where those emails were sent, by referencing them in the course of her duties as commissioner, she made them fair game.

    Of course, I don’t think Ragsdale needs this correspondence and tend to lean toward the idea he’s an ass for requesting it- but an official ruling wouldn’t apply to just this one case. It would be used to support other instances of withholding public record.

    And, I do believe regarding email as off-limits readies the political stage for scenes of corruption.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s