Open Records II - Exceptions
TPRA Exceptions
As we discussed in Part I, courts have broadly interpreted TPRA requiring disclosure of information absent a statutory exception. As of this writing, there are over 700 exceptions to the TPRA. Oftentimes, when persons request documents or districts respond to requests, the issue is not an whether an exception applies but rather if the requested documents are public records by definition.
In this article, we will cover both the major exceptions that schools, parents, and stockholders need to be aware of as well as what information is subject to disclosure.
Review of Public Record Definition
A public record is defined all documents, papers, letters, maps, books, photographs, microfilm, electronic data processing files and output, films, sound recordings, or other material, regardless of form or characteristics “made or received or ordinance or in connection with the transaction of official business by any government agency”. T.C.A. 10-7-301(6). Such language indicates that the content of the “record” determines whether it must be disclosed.
To better explain this principle, we can look to Brennan v. Giles County Board of Education. In Brennan, the court relying on a case in Florida, where the court focused on the importance of the content over its location.
In that case, a citizen was seeking emails (some of which were personal) from a government email account. The court noted that a personal email sent to a government account does not become a public record any more than a personal letter would if it were placed in a desk of a government employee. Times Publishing v. City of Clearwater.
Following this ruling, one can also conclude that communications/records concerning “official transaction of government business” would be subject to TPRA even if maintained on a personal device or account.
Are Personal Messages Public Records?
Official government business (see definition above), whether stored on a personal device or government device, is subject to TPRA. However, personal messages, even if on a government email account are not subject to public records request. So, what are districts to do with mixed messages. In short, the entity can redact the personal communications and produce that which is “concerning government business”.
For example, if A emails B on a government account and states “please update the agenda to include X” followed by “BTW, I’d like to buy some girl scout cookies if your daughter is still selling them”. The first portion of the email would be subject to TPRA while the second portion would not be subject to TPRA.
Likewise, the answer would be the same if the above conversation was conducted via text messages or Facebook Messager on personal devices. The information that was concerning "government business" is subject to TPRA and the latter is not. Once again, content not location determines whether a record must be produced.
Can Citizens Have Access to Devices?
No, TPRA expressly states that citizens do not have the right to access government devices. In short, files on the computers are subject to request but citizens do not have the right to personally search through government employee computers. T.C.A. § 10-7-503(B).
Can Employers Request Access To Employee Personal Accounts?
In 2014, the Tennessee legislature passed the Employee Online Privacy Act (EOPA). The act was passed to protect employees and prospective employees from employers requiring access to their private accounts. However, the act provides exceptions allowing employers to request access to personal internet accounts(messages, text messages, instant messages, blogs, podcast, photographs and videos) and in some cases discipline an employee who refuses.
One such exception would allow inspection for “specific information” on personal internet accounts for “compliance with applicable laws”. EOPA Section 4(b)(3)(A). It is likely that complying with records request pursuant to TPRA would qualify.
Major Exceptions for Schools
Family Education Rights and Privacy Act (FERPA)
The most common exception that schools often use when receiving an open records request is FERPA. FERPA is an entirely expansive federal provision intended to protect the privacy rights of students. While we will look at FERPA in a future series, FERPA is doesn’t always result in a complete deny of a request. FERPA does require districts to redact personally identifiable information (PII) from any request but courts have ruled that it does not allow blanket denials of a request under TPRA.
Those seeking request of agencies that maintain student data need to understand that records that contain PII may be redacted according to FERPA as well as T.C.A. § 10-7-504(a)(29). Additionally, districts have a duty to redact not only PII but also any information that would a allow a reasonable person from determining the identity of a student. Open Records Council Opinion. It is often this catchall requirement that leads districts to “play it safe” and reject all request that contain student records. Make note that directory information may be denied only if the parent of the named student has requested so in writing.
Criminal Records
It is not surprising that materials relating to an ongoing investigation are not subject to an open records request. Tennessean v. Metro Nashville 485 S.W.3d 857. Therefore, it makes sense that juvenile records are also exempt from open record requests. Accordingly, in the past few years, the legislature has provided for exemption for the documentation or notes of SROs from public records requests.
In 2022, legislation was passed that exempted body camera footage of minors from public record requests. This was an important step in protecting the rights of juveniles, unfortunately, this provision provided no exception for a parent to view footage if it was used to discipline their child as is available under the security exception discussed above.
Bids For Services or Products
Historically, many open records requests have dealt with the district’s expenditures of funds. The rule to follow is that any documents generated in addition to the bids themselves are subject to a request but only after "an intent to award a contract is announced".
Therefore, interested parties can participate in an announced bid opening event but those bids and tabulations are only subject to release when a bid is awarded. Essentially, if all the bids are rejected and there is no intent to award a contract, such information is not subject to TPRA.
Security – School Maps, Recordings, Assessments
In the past few years, there has been an increase in school violence. As a result, parents are concerned about the safety measures that schools have in place. While the TPRA is designed to ensure transparency, the legislature has taken steps to place security over an individual citizen's right to public records.
Request for 1) school maps, 2) evacuation and safety procedures, 3) security camera footage, and 4) safety assessments and planning are not subject to TRPA. The premise is to provide schools the ability to keep that information confidential to ensure the safety of faculty, staff, and students.
Parents need to know one exception to security camera rule mentioned above. That is, parents of students that receive a disposition for an action that is based on security footage have the right to view the footage.
Follow us on Twitter at @tnedlaw or subscribe to our newsletter for more open records guidance. In Part III we will review how to submit a request, the timeframe, the process for a response under TPRA.