Monday, March 31, 2008

Knox County Privacy Policy Needs To Be Amended IMMEDIATELY.

If you've read the news today, you're familiar with the story about the County Mayor requesting e-mail correspondence to Commissioner DeFreese regarding audits.    Clearly, it's a move to intimidate those who would send DeFreese or any other commissioner information, supportive comments, or even tips as to where to find more wrongdoing.

So, we've been having a lively discussion about the Tennessee Open Records Act and its application to this case.   I argued that e-mails from constituents would be private under the TN-ORA:

My quick read of the OMA refers repeatedly to "official correspondence." Correspondence generated BY the elected official is OC. Correspondence TO the elected official is not. If I as a commissioner write notes about a constituent's letter, that's my work product, and would be covered.

This point is easily reinforced by the e-mail section which reads "[email] correspondence OF the employee" and not TO the employee.

Also: 10-7-403. “Public records” defined.
“Public records” within the county shall be construed to mean:
(1) All documents, papers, records, books, and books OF ACCOUNT in all county offices, including..."

No mention of correspondence, which is clearly missing if that was the intent of the original author. Constituent letters are not "documents of account" as they are not documents of policy.

VDF has solid ground to stand and say "make me." I sure as heck would. And I'd say "if you take me to court, I hope you have the good graces WHEN you lose to pay all parties legal fees out of your campaign account instead of wasting more taxpayer money."

Well, I later found this under the Knox County Privacy Policy:

"Any personal information submitted through forms or email from the user is considered public information and may be subject to inspection upon request as governed by the Tennessee Open Records Act."

That's not good.  I'm not sure yet what the history of how this policy was formed, but it needs to be amended IMMEDIATELY.      We must also add specific wording in an ordinance for protection of whistleblowers, protection of private information (SSNs, medical information) that may come in an email to a commissioner, and close the loophole that would allow Commissioners to use private e-mail accounts to send county-related work product that would normally be covered by the Open Records Act.   

Right now, the ORA and the Knox County Policy only work to encourage County Officials to use Yahoo, Gmail, or other personal accounts that provide no accountability.

One could argue that a First Amendment challenge (to be free from retaliation) would sink the policy, but (a) I'm not willing to wait and (b) recent court decisions at the federal level against whistleblowers have weakened the 'free from retaliation' argument enough that we can't bank on it anymore.     

1 comment:

Stushie said...

The email section of the act, Steve, only pertains to employees of an agency of government. The Commissioners are represetnatives of the people, not employees of the Mayor.

I think you'll find that he won't pursue this and that Victoria was absoltuely within her State and Constitutional Rights to refuse to comply to this absurd request.