For the Records, pt. 2
In a lawsuit trial, the Knox County Sheriff’s Office outlines its unusual interpretations of the state’s Public Records Act.
by jesse fox mayshark • december 11, 2019
Attorney andrew fels, standing, questions his client, meghan conley, while deputy law director amanda morse and chancellor john weaver look on.
Two days of testimony this week painted a complex system for retaining and requesting public records — particularly staff emails — at the Knox County Sheriff’s Office.
"Emails" or "archived emails"? You'll need to request the right one, KCSO says.
According to statements in a public records lawsuit brought by a University of Tennessee researcher, Sheriff’s employees delete all work-related emails after 30 days and print out any emails that would qualify as public records before deleting them.
If someone asks to see copies of emails:
a.) the Sheriff’s Office will search only the 30 days’ worth of emails retained in digital form (and the department says it can search for terms only in the “To,” “From” and subject lines of emails, not in the body of the text);
b.) unless the requester specifies “archived emails,” in which case the Sheriff’s Office can make available entire stacks of printed-out emails, but will refuse to search through them to determine which ones comply with the records request;
c.) and will do the latter only after first redacting any confidential information, and will charge the requester for the labor involved, even if the request is only to inspect the records, not make copies of them.
Deborah Fisher, executive director of the Tennessee Coalition for Open Government, a Nashville-based nonprofit that advocates for transparency and public access to information, was in the courtroom for the testimony Monday and Tuesday.
“I had trouble making sense of anything the Sheriff’s Office said,” Fisher said after Tuesday’s hearing. “It is so far outside of how any other government entity operates, or how any government entity interprets the Public Records Act, or how the (state’s) Office of Open Records Counsel interprets the Public Records Act.”
The lawsuit was brought earlier this year by Meghan Conley, a UT sociology professor who alleges she has had difficulty getting information from the Sheriff’s Office about its participation in the federal 287(g) immigration enforcement program.
During several days of trial over the summer, the Sheriff’s Office asserted an unusually broad interpretation of the records law, saying that it could charge labor costs for the work involved in preparing public records for inspection. Both state law and the county’s open records policy say there can be no charge for inspection of records, just for copies, but the Sheriff’s Office says that doesn’t apply to labor costs.
The trial was postponed for nearly six months and resumed this week, wrapping up testimony yesterday. Attorneys for Conley and the Knox County Law Department are supposed to deliver written summaries of their cases to Chancellor John Weaver by Jan. 13, 2020, and then convene for a final hearing in the case on Jan. 24.
The proceedings this week sometimes visibly baffled Weaver, who often tried to coax coherent arguments from both Conley’s lawyer, Andrew Fels, and Knox County Deputy Law Director Amanda Morse. On occasion, Weaver took over the questioning of witnesses himself, several times asking pointed clarifications of Mike Ruble, the Sheriff’s Office chief counsel.
Information on ICE
The gist of the case is that Conley says the Sheriff’s Office has repeatedly obstructed her research into the 287(g) program during the past two years. Testimony this week detailed 11 different incidents in which Conley alleges she was provided no or partial responses to valid information requests. Many were denied outright as “overly broad,” because Conley used phrases like “any and all” in requesting records.
Among the documents Conley sought were arrest reports for anyone held by the county for federal Immigration and Customs Enforcement (ICE). Under the 287(g) program, some Sheriff’s Office staff at the county jail are trained in immigration enforcement and can identify inmates as eligible for deportation.
Ruble testified that because Conley asked for all correspondence between the Sheriff’s Office and ICE, he would have had to ask all 1,100 department employees individually if they had related records. When Conley narrowed those requests to specific people within the department, she learned of the 30-day email retention policy, and also that the department’s email system doesn’t allow searches within the body of an email (a common feature on most email systems).
But to satisfy records retention laws, Ruble testified, the department orders employees to print out physical copies of any emails that qualify as public records, broadly defined as communication conducted for official business in an official capacity.
“The Sheriff’s Office in Knox County thinks they do not have to follow the Public Records Act, and that was clear.” – Deborah Fisher, executive director, Tennessee Coalition for Open Government
Hillary Martin, the Sheriff’s Office public records coordinator, testified that she did not search the printed emails to try to satisfy Conley’s requests, because Conley had requested “emails” rather than “archived emails.”
Morse said that Conley had been provided a copy of the department’s email policy and should have understood how it worked. At one point, she asked Conley, “Where in these emails did you ask Ms. Martin to search the archived emails or emails that had been saved pursuant to this policy?”
“I did not,” Conley said. “She said they were not available.”
Cabinets and Compiling
In another exchange, Weaver asked Ruble about his contention that he couldn’t possibly know where all the Sheriff’s Office records related to ICE are: “So when you say, ‘Bring me all my files on ICE,’ the clerical help says ‘I’m sorry Chief, your request is too broad’?”
Ruble said the difference was that a records request has the force of law, meaning that the department could be held liable by a court for turning over partial records.
“The answer is no, there is no one single place you can go,” Ruble said.
“There isn’t a file cabinet?” Weaver asked.
“No sir, not that I’m confident would have everything in it,” Ruble replied.
Conley said that the department’s demands for specificity in her requests were difficult to meet, because she didn’t know the names or types of documents that might exist.
“I don’t know the exact language that the KCSO might have used,” she testified.
Fisher said that from what she heard in the courtroom, she was troubled by the department’s positions on several issues.
“The Sheriff’s Office in Knox County thinks they do not have to follow the Public Records Act, and that was clear,” Fisher said. “It’s supposed to give ways to access records, and they’re trying to find every way they can to deny access.”
Among her biggest objections was to the department’s use of the phrase “sort and compile” to explain why it can’t provide records. The Public Records Act says, “This section shall not be construed as requiring a governmental entity to sort through files to compile information or to create or recreate a record that does not exist.”
Martin testified that that was why she declined to search through printed-out emails looking for those related to a specific topic. “It’s sorting and compiling,” Martin said.
But Fisher said that clause is widely understood to mean an agency doesn’t have to create a new record — not that it doesn’t have to search through existing records.
“This is the first agency in the state that I’ve heard say that,” Fisher said.