If you are a public official or employee in Tennessee and you are emailing, texting or otherwise communicating about public business, then those digital data–even if sent from or stored on personal devices–are considered “public records” and are open to inspection upon request.
Public records include digital data that pertains to city business—even that which is sent from a personal device.
The Tennessee Public Records Act defines “public record or records” 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 pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency.” TCA 10-7-503 (emphasis added)
A recent 2013 Illinois Court of Appeals decision addressed text messages sent by some Aldermen from their personal cell phones during a council meeting. The bowed heads and keyboard finger clacking–not particularly decorous, but that’s another issue–piqued the curiosity of a reporter from the local News-Gazette, who filed a formal public records request, specifically stating: “Please note that this request applies both to city-issued and personal cellphones, city-issued or personal email addresses, and Twitter accounts.” Champaign’s FOIA officer contended that such content did not meet the definition of public record (under the Illinois statute), but an appellate court unanimously begged to differ.
There hasn’t been a reported case on this specific issue in Tennessee (yet), although the Court of Appeals has ruled in the case Brennan v. Giles County Board of Education, that not all records created on government-owned computers are “public records.” In that case, the plaintiffs wanted to view the computer and Internet activity of school-owned computers or “private computers connected to the school owned internet system”. The trial court conducted an in camera (private) review of the information and determined that they were not public records under the law.
The Brennan case indicates that the primary issues before the court will be whether the content of the message was “in connection with the transaction of official business by any governmental agency” and when the communication occurred; ownership of the electronic device will not be the deciding factor.
