September 5, 2001
Dear Sir:
According to your phone call this date, the city administrator sent under a pseudonym to
a certain female four e-mails, which the female (who was not a city employee) found
objectionable and reported them to the attorney general. An investigation by the attorney
general discovered the source of the e-mails. However, the attorney general concluded that no
crime had been committed. As you described the e-mails, they were neither obscene nor
pornographic, but were in questionable taste. The mayor informed the city administrator that the
e-mails violated the city’s policy on e-mails, which the city administrator had drafted, and gave
him the option of resigning or facing certain disciplinary action. The city administrator submitted
his resignation to the mayor, effective October 1. A citizen has learned of the existence of the emails, and wants those e-mails and any e-mails that may have been sent from the city
administrator’s computer.
Your question is: Are such e-mails open records?
The answer is yes.
The Four E-Mails
Generally all municipal records, including computer records are subject to the open
records law, unless they are specifically closed by state or federal statute [Memphis Publishing
Company v. Holt, 710 S.W.2d 513 (Tenn. 1986); Cleveland Newspapers, Inc. v. Bradley County
Memorial Hospital Board of Directors, 621 S.W.2d 763 (Tenn. Ct. App. 1981)]. Those statutes
include the Open Records Law itself, Tennessee’s Privacy Act [Tennessee Code Annotated, '
47-25-1101 et seq.], and various other state and federal statutes. In addition, Tennessee Code
Annotated, ' 10-7-512 requires that city’s must develop a policy on the monitoring of e-mail, and
the policy must include a provision that employee’s e-mail correspondence may be a public
record under Tennessee’s Open Records Law, and subject to inspection under “this part.” That
language indicates that e-mail might be subject to public inspection under both the Tennessee
Open Records Law and under Tennessee Code Annotated, ' 10-7-512. Finally, persons also
have a U.S. Constitutional right to privacy in various areas. However, in my opinion, none of
those statutes or constitutional rights close the records in question.
Under the Open Records Law records can be closed during an open criminal
investigation. But even in criminal cases, when the case is closed, the records become open.
[Holt, above]. It can be argued that the “case” against the city administrator is still open. That is
an extremely weak argument. Under the facts related to me, the attorney general has completed
his investigation and has concluded that no criminal charges will be forthcoming.
It could also be argued that a municipality can close records during an administrative
investigation, but we need not reach a conclusion on that question, because the city has
September 4, 2001
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apparently exercised its administrative remedies, leading to the resignation of the city
administrator, effective October 1. A resignation of an officer is not final until it has been
accepted by the body or person that has the authority to make the appointment of the officer,
and cannot be withdrawn once it is accepted [State ex rel. v. Bush, Sheriff, 141 Tenn. 229
(1918); State ex rel. Bergschicher v. Grace, 113 Tenn. 9 (1904); Murray v. State ex rel. Luallen,
115 Tenn. 303 (1905)].
The City Charter is unusual in that it provides that the mayor has the power of
appointment, subject to the approval of the city council, over “department heads and other major
officers of the City whose appointments are not otherwise provided for in this charter and who
would not be employees of boards or commissions.” The appointment of the city administrator is
“not otherwise provided for in the charter.” For that reason, the mayor has the power of
appointment over the city administrator. In the absence of any statute or charter provision to the
contrary, the power of appointment includes the power of removal [Gillespie v. Rhea County, 235
S.W.2d 4 (1950); Gamblin v. Town of Bruceton, 803 S.W.2d 690 (Tenn. App. 1990)]. The
mayor having accepted the city administrator’s resignation appears to have concluded the
administrative investigation against the city administrator, even though technically he remains on
the city payroll until October 1.
I can find no exception to the Open Records Law that applies to the recipient of the emails. Under the facts, she herself disclosed those e-mails, and the attorney general
investigated them. Had criminal charges been forthcoming, the records could have remained
closed under Holt only until the case was closed. It seems to me that even if the recipient had
some right to privacy in the e-mails (a right which I cannot find in any statute or cases) she
waived those rights when she made them the subject of a criminal investigation.
Additional E-Mails On The City Administrator’s Computer
With particular respect to the citizen’s request for the additional e-mails on the city
administrator’s computer, under Tennessean v. Electric Power Board of Nashville, 979 S.W.2d
297 (Tenn. 1998), those records also appear to be open records. Obviously, the city
administrator may have sent and received literally thousands of e-mail messages. Most of those
e-mail messages have probably already been deleted in the ordinary course of business. While
I am not a computer expert, I have been told that it is possible to retrieve even deleted e-mails,
but that the process is extremely expensive. Electric Power Board also held that where the
recovery of information in a city’s computer records in a format useful to the person requesting
the records requires a new program or special techniques, the city can charge that person the
cost of such new program or special techniques. The Court supported its holding by pointing to
Tennessee Code Annotated, ' 10-7-506(a), under which an agency could enforce reasonable
rules “governing the making of such extracts, copies, photographs, or photostats.”
Needless to say, the city is probably well-advised to adopt a written policy governing its
recovery of costs for such extraordinary records requests.
Sincerely,
September 4, 2001
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Sidney D. Hemsley
Senior Law Consultant
SDH/