IN THE CHANCERY COURT FOR KNOX COUNTY. TENNESSEE THOMAS F. CHESTER, Petitioner, No. 184008-2 KNOX COUNTY, TENNESSEE, Respondent. ANSWER OF RESPONDENT. KNOX COUNTY, TENNESSEE Comes now the Respondent, Knox County, Tennessee and answers the Petition filed by Petitioner as follows: 1. The averments of paragraph 1 of the Petition are admitted. 2. It is admitted that Knox County is a governmental entity created by the State of Tennessee. It is admitted that Knox County has the duty to maintain those records as are required by the legislative enactments of the State of Tennessee and by the Charter of Knox County, Tennessee and no others. Petitioner (Mr. Chester as agent for the Knoxville News Sentinel -- is mistaken in his (its) conclusion that T.C.A. Section defines that which is a public record in Tennessee and therefore the allegation is denied. Further, the petitioner and the KNS are mistaken in their conclusion that "records of electronic communication transmitted Via computer or personal electronic devices known commonly as e- mails," are public records under T.C.A. l0-7-503. A reading of the statute clearly renders no such conclusory statement and same is therefore denied. 3. The laverments of paragraph 3 of the Petition are admitted in part and denied in part as follows: a. It is denied that Petitioner made a request for any documents prior to September 10, 2012. A request was made an entity known as the Knoxville News Sentinel, (as assumed name for Scripps Media, Inc), that made a request for documents, purportedly under T.C.A. 10-7-503 on August 7, 2012 as shown on Exhibit 1, attached hereto. Said request was for the personal e-mails of 84 persons, most all of whom are not employees of Knox County, Tennessee, and whose e--mails are not part of the Knox County e--mail server system. b. Respondent's IT department immediately began a search and determined that there were six thousand, two hundred and seventy-seven (6,277) e~mails matching the KNS request. [This mmzber was Inter increased to 7,965 afl'erfizrfher Search by Knox County]. On August 8, 2012, Law Director Joseph G. Jarret tirnely responded to the KNS request via letter and on the form suggested by the State of Tennessee Office of Open Records Counsel. (Exhibit 2). c. The Office of the District Attorney General then sent a letter to Mr. Jarret" advising of the possibility of exempt conununications relating to ongoing criminal investigations and requested an independent review. (Exhibit 3). d. Subsequently, on August 13, 20l2, the KNS amended the list of e-mails, deleting some from the original list and adding additional names. This resulted in a request for approximately six thousand, six hundred and seventy~four (6,674) e~mails. (Exhibit 4). e. On August 14, 2012, the office of the Knox County Law Director responded to the KNS amended request Via letter and on the form suggested by the State of Tennessee Office of Open Records Counsel. (Exhibit 5). f. Mr. Chester and Mr. McElroy, on behalf of the KNS then requested a meeting with the Law Director and the IT Department. This meeting occurred on August 20, 2012 in the law director's office. This meeting resulted in an agreement whereby the county would supply a list of the e-mails, with headings only, for initial review by KNS. Mr. McElroy and MI. Chester confirmed this is an e-mail on the same date. (Exhibit 6). g. On August 23, 2012, the IT department forwarded a 165 page document containing the title lines for 6,674 separate e-mails (Exhibit 7) to the Knox County Law Director. These were then forwarded to the KNS c/o Mr. Chester on August 29, 2012 and continued by Mr. Chester. (Exhibit 8). 11. On September 10, 2012 the KNS through Mr. Chester sent a revised iist, paring down the number of e-mails from 6,674 e--mails to 75 separate e-mails. (Exhibit 9). i. On September 26, 2012, 50 "vetted" e-mails were submitted to Mr. Chester (Exhibit 10). Included in the response was the detailed explanation of the reason for denying the request for 25 of the e-mails. j. On October 10, 2012, the KNS, through Mr. Chester, requested further information on the basis for denial of 15 records. (Exhibit 11). On October 11, 2012, Respondent replied to KNS request with the reasons for denial and a reference to applicable law. (Exhibit 12). In further response, Knox County has no knowledge as to why the KNS requested the e- mails, and if relevant, demands strict proof thereof. Knox County denies the legal conclusion of the broad legal conclusion that all mails are open records subject to public inspection. Knox County admits that KNS has properly quoted the verbiage of T.C.A. 10-7- Knox County denies that said section includes electronic e-mails in the definition of public records. Defendant Knox County denies the KNS broad assertion that the case of Brennan v. Giles County Board of Education, (unpublished case, Docket M2004-00998-COA-R3-CV, Tenn. App. 2005, attached to the Complaint), stands for the proposition that personal e--mails are public records. The Brennan Court adopted this wording from the Florida Appellate Court: . . the public records law must be construed liberally in favor of openness. City of St. Petersburg V. Romine, 719 So.2d l9 (Fla. 2d DCA 1998). In this case, however, "private" or "personal" e-mail simply falls outside the current definition of public records. Such e-mail is not "made or received pursuant to law or ordinance." Likewise, such e-mail by definition is not created or received "in business" by the City. Although digital in nature, there is little to distinguish such e-mail from personal letters delivered to government workers via a government post office box and stored in a government owned desk." 4. Exhibit is admitted to be a letter from Elisha D. Hodge. It is admitted that the KNS has accurately cut and pasted a small portion of that letter. For a fuller and more accurate reporting of the body of Exhibit C, the KNS has omitted Ms. Hodges' quote from the court as set out above in the response to paragraph 5 below. Further the KNS has not fully reported the following paragraph from the Hodge letter: . . With this definition [of a public record] in mind, the first thing that is going to be necessary for the school system to do is a review of all the requested emails to determine whether or not they meet the definition of "public record." . . . It is this Office's opinion that the school system needs to conduct a thorough review of the emails required and make a determination of whether the emails requested are public records" based upon the definition cited above. The Office would also advise the school system that, while not required by law to do so, best practice would be for the school system to let the requestors know that all of the documents that are being provided pursuant to their open records request are all those that meet the definition of public record, and if any emails were excluded, the basis on which they were excluded." Defendant Knox County denies that it has not followed that policy and affirmatively avers that it has followed such a policy. interests in access to government information. Such study shall be conducted by the computer subcommittee of the joint management committee of the Tennessee general assembly." It is denied that this statute or the Knox County resolution amends the statutory definition of a public record. It is admitted that this Court has the following power under T.C.A. The court, in ruling upon the petition of any party proceeding hereunder, shall render written findings of fact and conclusions of law and shall be empowered to exercise full injunctive remedies and relief to secure the purposes and intentions of this section, and this section shall be broadly construed so as to give the fullest possible public access to public records." 10. The averments of paragraph 10 of the Petition are admitted. 11. It is denied that KNS has appended the full opinion letter of Ms. Hodge. Ms. Hodge relied in part upon the opinion of the Alaska Attorney General which is Exhibit A to the Opinion. Knox County has attached the entirety of that opinion as Exhibit 14, hereto. The Alaska AG opined, in part: "As explained below, the answer is that rgrsonal emails and call records are not gublfc records under the definition in the Public Records Act and public disclosure of such personal information would likely run afoul of the individual's right to privacy under the Alaska Constitution. However, a state official or a court could be required to review all call records and messages in order to locate records generated through these personal devices that concern state business and that are public records. In summary, state business records generated on a personal cell phone or PDA are public records subject to review and disclosure, unless the Public Records Act permits them to be withheld. Personal records are likely protected from public disclosure but are not protected from state official or court review to the extent necessary to identify state business records." (Page 12 Alaska Attorney General Opinion). 12. It is denied that Knox County is not in compliance with the law. Further Knox County avers that it has followed the law of this state as set out by the appellate court in the Brennan case and the opinions of Open Records Counsel. It is further averred that the KNS, for whatever reason, has failed to state herein, or to show to this court, how personal e-mails meet the definition of a public record or how they are to be construed as documents which were "made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency. 13. For further affirmative defense, Knox County would show that service of process was improper under Rule 14. Under T.C.A. the Court must first determine if the procedure followed by Knox County with regard to responding to the initial request for 6674 e-mails was proper or improper. Knox County affirmatively avers that the process was proper and in full compliance with the law. 15. The right to bring suit under T.C.A. 10-7-505 belongs to a citizen and respectfully, the Knoxville News Sentinel is not a "citizen" under state law. 16. Knox County thereby asserts that Mr. Chester has no standing to bring this suit as it was the KNS that made the request and KNS is not a citizen. 17. Knox County stands ready willing and does hereby tender to the Court, under seal, copies of the personal e-mails requested by the KNS. WHEREFORE, YOUR RESPONDENT PRAYS: l. That this action be dismissed with costs to the Petitioner. 2. For other, further and general relief as this Court may deem proper. Respectfully submitted Richard B. Jr. 27072) Law Director, Knox County City County Building, Suite 612 400 Main Street Knoxville, TN 37902 (865) 215-2327 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and exact sewed upon Richard L. Hollow, Post Office Box 11166, Knoxville, Tennessee 37939, Petitioner's attorney, by mailing a true and exact copy hereof via United States Mail, this day of 2012. copy of this pleading has been Richard B. Jr. Attorney for Respondent