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VOL. 123 | NO. 54 | Tuesday, March 18, 2008

Dated Tennessee Law Not Sufficient For Dealing With E-mails

By TRAVIS LOLLER | Associated Press Writer

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NASHVILLE (AP) - In Tennessee, the law treats government electronic communication just like any other public record. With some exceptions, e-mails dealing with public business should be open to the public - at least in theory.

But Ann Butterworth, the state's new ombudsman for open records, said the law, which dates to 1957 and was updated in the 1970s, doesn't account for the realities of dealing with e-mail.

For instance, the law requires that public records be available for public inspection, but there is also a requirement that certain sensitive information, such as Social Security numbers, be redacted from records.

Practically speaking, that means a citizen cannot walk into a government office and see the e-mails of an employee or official the way they can see the minutes of a city council meeting, she said.

"Life is more complicated than when the Open Records law first came into play," Butterworth said. "We're moving away from paper documents."

Frank Gibson, director of the Tennessee Coalition for Open Government, of which The Associated Press is a member, said Tennessee law is sufficiently vague right now that it allows government officials to use various tactics to delay or even deny the release of e-mail.

But because more and more government business takes place using e-mail, he said, it is more important than ever that the public have access to it and the law needs to be updated accordingly.

"Nothing has been done to bring our records law in line with the rest of the country since the legislature first allowed the storage of information electronically or the use of electronic communication," Gibson said.

An Associated Press survey - conducted in conjunction with Sunshine Week, a nationwide effort to draw attention to the public's right to know - found e-mails for governors in at least seven states are officially exempt from disclosure under the Freedom of Information Act.

Tennessee doesn't provide a blanket exemption for the governor's e-mail, but several news agencies across the state have run into difficulty when requesting e-mails from local governments.

The Commercial Appeal has filed suit against the city of Memphis for "excessive delays" in responding to its requests for a number of records, including e-mails from City Council members.

"People have strange notions about e-mail," said Lucian Pera, an attorney for the paper. "It's so informal as a medium and so ephemeral in people's minds that people treat it differently" than a paper letter.

That is, people often write things in e-mails that they would never put on paper letter. And they assume e-mails will never be seen by the public.

But Pera thinks sending a message, even one that is personal, from a government e-mail account should be seen as equivalent to sending a paper letter on government stationery, from a government office.

And electronic records don't just disappear. They have to be destroyed.

But there is no consistent standard across the state for how long various government agencies hold onto e-mails, Butterworth said. Butterworth's office advises the public and local government officials on county and municipal records.

State records are dealt with by Tennessee's Attorney General's office, but Tennessee's open records law applies equally to state government.

Some of the problems and inconsistencies with the current law could be addressed once the Legislature appoints an advisory committee that, with the ombudsman, has been asked to review some aspects of the Open Records law, including the handling of electronically stored records.

Copyright 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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