Private emails, texts, about government business often not kept on file

There’s no question the documents Franklin resident Emily Jenkins sought in an open records request exist because they were quoted multiple times at a hearing. On July 27, the Franklin Ethics Commission substantiated evidence that Alderman Gabrielle Hanson violated ethics codes and unanimously recommended to the Franklin Board of Mayor and Aldermen that she be censured over messages she sent to Doug Kreulen, president and CEO of the Metro Nashville Airport Authority, about the airport’s support of a Juneteenth event hosted by the Franklin Justice and Equity Coalition.

“To put it mildly, our citizens are outraged and angry,” Hanson wrote in an email sent from her personal account. “Is it the mission of BNA to support Juneteenth? Is it the mission of BNA to support radical [agendas] that are dividing our country? That is the question our citizens would like answered.”

She also encouraged the board to financially contribute to a different organization instead of FJEC.

Prior to the hearing, Jenkins called Angie Johnson, Franklin’s city recorder, to request a copy of Hanson’s messages. On June 27, Johnson moved the conversation to email, and Jenkins followed up two days later to ask if the city needed more time to review the documents before releasing them. On June 30, the city said they were unable to produce the emails and texts Jenkins asked for.

“This is confirmation that all records in the City of Franklin system responsive to your request have been provided,” the city’s reply said. “This includes all records provided by Alderman Hanson from personal email accounts used for City business, which cannot be accessed directly by the City.”

As of publication, Hanson has not released those documents in compliance with Jenkins’ open record request. Shauna Billingsley, Franklin’s city attorney, said in a phone call with the Lookout that the city doesn’t have a special policy or code relating to the retention of private documents, or documents sent by officials on personal accounts. Billingsley said the city defers to the state’s open records law.  TN Code § 10-7-503 states that “public records” are defined 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… in connection with the transaction of official business by any governmental entity.” This means private messages and accounts used to transact government business are included in public records requests like the one Jenkins sent, and that, as the city’s email stated, Hanson should have turned over the messages.

“They’re not trying to say it was a private conversation,” Jenkins said of Hanson’s legal arguments, which her lawyer presented during the ethics hearing. “She has to produce the document.”

As of now, the only way for Jenkins to enforce the statute would be if she, a practicing attorney herself, hired a lawyer and took Hanson to court. The city has offered no avenue for additional recourse. Jenkins says she requested mediation with the state’s Open Records Counsel but was told that while Hanson is in violation of the law, there is no enforcement mechanism.

“There’s nothing that says what happens when you’re doing it from a private email,” Jenkins said of the request and of state code. “There is no provision to sue a private individual for refusing to produce documents. I really don’t think it’s unintentional.”

Jenkins said the city also charged her more than $100 for the incomplete request. State law says government entities may charge requesters for copies of documents and for the labor involved in collecting them for inspection, but says a requester may challenge those fees and call the state comptroller’s office with questions. Jenkins said it isn’t fair for citizens to pay for records requests and to foot the bill for enforcing them when officials refuse to comply, too.

“Right now the only option is to pay out of pocket to hire an attorney to get something that you have a right to,” Jenkins said. “That’s not how the rest of Tennessee state code works. There ought to be something, if they actually care about transparency.”

Policy gaps across Tennessee

Franklin isn’t the only Tennessee city that lacks a policy pertaining to private account use for government business, and other large cities in Tennessee defer to state policy and don’t regularly keep track of officials’ private accounts. Mike Browning, Murfreesboro’s public information officer, said in an email statement that there is no official policy on record regarding private document retention. But the city attorney advises that under the law, if public business is conducted on private devices, the communication is open to public record, said Browning. 

Those records aren’t actively kept on file. A representative for the city of Spring Hill said much the same in an email to the Lookout; anything done on a personal device is subject to open records law, and the city provides devices and email accounts for employees to conduct business on as well.

Metro Nashville has additional policy, and Metro Clerk Austin Kyle said the city’s two retention schedules, which are sets of rules about when and how records can be destroyed, are reviewed by Metro Legal to insure compliance with all local, state, and federal laws and then approved by the Public Records Commission. While there is no specific policy about retaining private accounts and documents, every official is made aware of the open records laws and what falls under them.

“Any official government business conducted on a personal device or personal account is still subject to public record laws,” Kyle said. “Employees who use personal devices in this manner will have signed acknowledgement of their agreement to the authorized use policy. They are charged with being aware of Metro requirements for their use of Metro assets and information, including public records. In the past, when we have had public record requests for texts or instant messages on personal devices, we have asked the owner of that device to take screenshots of any relevant messages or texts and provide them to Metro, and we then provide them to the requester.”

Of course, not every official using a private account to conduct business has an ulterior or malicious motive, according to Deborah Fisher, executive director of the Tennessee Coalition for Open Government. Fisher said it’s important to stay realistic about the sheer volume of messages sent on private accounts, and that often, a constituent will reach out to an official there or on social media instead of an official government email address. In addition, even messages sent on government accounts aren’t always important — such as choosing where to have lunch, for example — so keeping every single message isn’t feasible or even advisable. Still, she said technological advances have outpaced how governments keep track of all the messages officials send across social and digital platforms. 

Fisher said educating officials and employees about the law and policy is important, as is encouraging them to use government email as often as possible. She also said whether someone is using a private or government account, messages can always be deleted. If someone has a negative intent, they’ll still find a way around the law — and even simple requests can take a long time to process when they require sorting through inboxes full of email. 

Some government officials have told Fisher they need to permanently delete things to free up server space, but she hopes to see them utilize better and cheaper technology to increase space instead. Because a public record is anything created or received in the transaction of government business, anything created on a personal device still meets that definition — meaning more data to store.

“When someone makes an email request, I see it taking weeks and weeks and weeks, because officials have to sort out what’s important and what’s not, and what’s private and what’s not,” Fisher said. “We do need to be searching for some technical solutions, and I don’t know if they’ve arrived yet.”