by jesse fox mayshark • april 14, 2020

In a rebuke to the Knox County Sheriff’s Office, Chancellor John Weaver has ordered the department to take several steps to make its records more open to the public.

The department could be found in contempt of court for further obstruction.

Weaver also ordered the department to pay the attorney’s fees of University of Tennessee sociology professor Meghan Conley, who sued the department last year over access to arrest reports and other documents related to its 287(g) immigration enforcement program.

“There is an abundance of evidence in the case that the KCSO may have frustrated Professor Conley in her obtaining access to the KCSO’s public records,” Weaver wrote in his opinion, which was released yesterday.

More than the denial of any specific records, Weaver found KCSO’s overall approach to Conley’s requests problematic. In many cases, her requests for information about the 287(g) program were denied out of hand for being overly broad. On the other hand, when she made more specific requests, they were denied because it would require too much work by KCSO personnel to fulfill them.

“There are problems with the KCSO’s practices concerning public records,” Weaver wrote. “The KCSO’s specificity policy has been especially troubling.”

He ordered the department to comply with any outstanding requests from Conley within seven days and to devise a better system for public access to arrest reports within 30 days (although those time limits are suspended for the duration of the state’s Stay at Home order during the coronavirus pandemic).

More broadly, Weaver prohibited KCSO in the future from denying any records requests solely on the basis of being too broad or insufficiently detailed.

“I’m thrilled that the Court has affirmed the robustness of the Tennessee Public Records Act in maintaining public access to the workings of government,” Conley said in an email yesterday. “I spent a year and half trying to get records from KCSO, and I ended up receiving a fraction of what I expected. The experience was incredibly frustrating.”

KCSO spokeswoman Kimberly Glenn said yesterday that Sheriff Tom Spangler had not yet had the chance to review the decision with the Knox County Law Department.

Deborah Fisher, executive director of the Tennessee Coalition for Open Government, called the ruling a victory for public access to government records.

“I think this was a win for Professor Conley and a win for Knox County residents who try to get information from the Sheriff’s Office,” said Fisher, who traveled from Nashville to observe hearings in the case.

Escalating Frustration

Conley is a researcher and an immigrant rights advocate who is on the steering committee of the group Allies of Knoxville’s Immigrant Neighbors (AKIN). That organization has lobbied KCSO to discontinue its participation in the 287(g) program with U.S. Customs and Immigration Enforcement (ICE).

Under the program, ICE delegates some federal immigration enforcement powers to local agencies. Trained KCSO employees at the Knox County jail can check the immigration status of people charged with crimes and recommend them for federal action including deportation. (According to ICE, KCSO and the Greene County Sheriff’s Office are the only law enforcement agencies in Tennessee currently in the program.)

As part of her scholarly work, Conley is writing a book on the treatment of undocumented immigrants in Southeastern states. To understand KCSO’s use of its 287(g) authority, for the past three years she has sought documents and records from the agency. Many were denied outright, with the department saying her use of phrases like “any and all documents” relating to the program was insufficiently detailed under the state’s Public Records Act. 

Conley filed her lawsuit last spring seeking to compel more cooperation from KCSO. Among the records she sought to inspect were arrest reports.

Over the course of hearings in the case last year, the Sheriff’s Office made a number of assertions about its records practices, including that the department:

• Has no way to provide for free inspection of arrest reports, and is not required to by law;
• Does not retain any emails for longer than 30 days except for emails deemed to be public records, which are printed out and saved and must be specifically requested as “archived emails” if someone wants to look at them;
• Does not have the ability to search for keywords within the body of an email’s text, only in the “subject,” “from” and “to” lines of the header;
• Cannot be compelled to search through a file of existing records to find the ones that a requestor is seeking;
• And is permitted to charge labor fees for redacting confidential information from records before providing them for inspection, despite statements in state law and county open records policy that there can be no charge for records inspection.

Fisher said that based on testimony in the case, the department’s policies created insurmountable hurdles for Conley.

“She didn’t know what to do, she was just trying to get the information,” Fisher said. “It’s clear she kept asking because they wouldn’t give her what she was entitled to under the law.”

In his ruling, Weaver found that KCSO’s denial of Conley’s requests as too broad was at odds with the intent of the state’s Public Records Act. 

“The dichotomy here, according to the KCSO’s arguments, is that a request that is specific may require sorting and is impermissible under [state law],” Weaver wrote. “On the other hand, a request that is broad does not sufficiently identify the record requested and is also impermissible under the specificity requirement ... .”

He also faulted the department’s lack of public access to its arrest reports. KCSO had said it could produce individual reports on request, but it had no means to make all the reports from a given week or month available for public inspection.

“This is not in compliance with the mandate of (state law),” Weaver wrote. “These records are to ‘be open for inspection.’”

He ordered KCSO to “implement a system, either manually or through a computer program or system, that will enable it to produce its arrest records on a current basis for inspection and viewing by citizens.”

Weaver also said that the department can’t avoid complying with records requests just because they require effort to search through and find relevant documents: “[W]here a citizen requests particular documents maintained in voluminous files, the governmental entity may be required to go through the files and manually retrieve the documents requested,” he wrote.

Danger of Contempt

Fisher said she thought the strongest part of Weaver’s ruling was the order that KCSO could no longer deny records requests just for being broadly worded.

“The KCSO is prohibited from treating any written request for inspection or copies generally phrased in terms of information sought as insufficient for lack of specificity or detail,” Weaver wrote.

The order puts the department on notice that failure to comply with Weaver's directives could lead to it being found in contempt of court.

“The effect of the order I think is really strong,” Fisher said. “It definitely raises the stakes for the Sheriff’s Office going forward.”

Weaver wrote that a future hearing will determine the amount of attorney’s fees and legal costs KCSO will have to reimburse Conley for. 

Conley said the ruling should clear the way both for her own continued research and for anyone else seeking information from the department.

“If I hadn’t been making these requests as part of my professional research, I might have given up,” she said. “It makes me wonder how many other people have been denied access to records without recourse, because they didn’t have the same legal support that I had. I’m looking forward to getting back to my research on the Knox County Sheriff’s voluntary participation in the 287(g) program.”

Pay to See

One issue Weaver discussed but didn’t rule on was KCSO’s assertion that it could charge fees for the labor involved in redacting confidential information from arrest reports. Conley had not raised that as an issue in her suit — because she was not provided any arrest reports, redacted or otherwise — but it came up during courtroom testimony.

In general, the state’s Public Records Act says labor fees can be assessed only if someone requests copies of a record, not if they just want to inspect it. (Even then, the law allows only proportionate charges — if it takes five hours to compile 400 pages of documents and the requestor wants copies of just four pages, the agency could charge only 1 percent of the total labor cost involved.)

The county Law Department had argued in court that one subsection of the law, generally understood to apply only to utility records, actually allowed KCSO to charge labor costs for the inspection of records.

But after reviewing the law and relevant rulings, Weaver indicated the weight of precedent was on the side of not allowing labor fees to produce records for inspection. He also noted the Law Department’s argument was “directly contrary to the opinion of the Tennessee Office of Open Records Counsel,” the state agency charged with providing guidance on the law.

Fisher said the exemption in the law that was cited by the county was made more specific in a bill signed just last month by Gov. Bill Lee, clarifying that it applies only to utility companies and not to law enforcement agencies or other entities.

“The Sheriff’s Office was grasping at ways to make an argument, putting together different pieces of the law to say they could charge for redaction for inspection,” Fisher said.