Tennessee governments — including cities — that operate or maintain an electronic-mail (e-mail) system must adopt a written policy about monitoring e-mail communications.
The written policy must include:
- the circumstances that warrant e-mail monitoring; and
- a statement that the employee’s e-mail correspondence may be a public record under Tennessee’s Public Records Law and may be inspected by the public. T.C.A. § 10-7-512.
The statute, adopted in 1999, does not require a city to monitor e-mail; that is each municipality’s decision. If a city chooses to monitor e-mail, its policy must meet both conditions stated above. In a municipality that does not monitor e-mail, however, the policy must at least satisfy the public record statement requirement.
Should the city monitor its e-mail?
City officials and employees who must answer that question should review the reasons whether or not to monitor e-mail. Some of the reasons not to monitor include:
- the practice may be seen as intrusive and obnoxious;
- distrust between management personnel and employees, and even between employees can be generated;
- monitoring may be expensive, particularly the cost of retrieving deleted e-mail ; and
- monitoring involves some serious legal privacy issues that apply generally to all government employees.
Some of the reasons for monitoring include:
- improper misuses could have serious legal and financial repercussions for the city, such as the disclosure of medical or other confidential files or information;
- remarks or jokes disseminated and forwarded by e-mail that may have been intended to be harmless but may be grounds for a suit against the city for creation of a hostile work environment, for racial, religious, or sexual discrimination, or for even libel or defamation;
- software owned by the city may be used to conduct non-city business;
- software may be duplicated illegally for home or other use, which might constitute software piracy copyright infringement; and
- e-mail is subject to the discovery rules in litigation.
What are the major problems involved in monitoring e-mail?
The General Assembly pointed to those problems in monitoring e-mail. In adopting T.C.A. § 10-7-512, it directed that an e-mail study be conducted, "to balance the privacy interests and practical limitations of public officials and employees with the public policy interests in access to government information." [Author’s emphasis.] The General Assembly said that the use of e-mail by governments creates the following "unique circumstances": generally, telephonic communications are not stored in any form and are regarded as private, but e-mail creates an electronic record that may be used or retrieved in paper format; and e-mail is becoming more common and important, but public officials are not equipped to act as official custodians of such communications and to determine whether or not the communications might be public records. Certain federal and state statutes and case law also protect the privacy of workplace e-mail communications.
How does the city handle the privacy problem?
Generally, the statutes and the cases that protect the privacy of e-mail in the government workplace permit monitoring of such e-mail where the government employees have been given notice that their e-mail communications are subject to being monitored. The most successful notice is written notice. For that reason, the city can ensure that the e-mail policy it adopts in accordance with T.C.A. § 10-7-512 includes provisions notifying employees that the city intends to monitor e-mail. Employees should be required to read the policy and to acknowledge with their signature that they understand it.
How does the city handle the open records problem?
T.C.A. § 10-7-512 does not require city’s to monitor its e-mail. However, if the city decides not to monitor, its e-mail policy must include the statement that employee’s e-mail correspondence may be a public record under Tennessee’s Public Records Law (T.C.A. § 10-7-503), and subject to inspection under "this part." The "this part" phrase suggests that a person claiming access to a city’s e-mail might base his or her claim under both Tennessee’s Public Records Law and T.C.A. § 10-7-512.
Most municipal records are open under T.C.A. § 10-7-503, but that law contains several exceptions, including some found expressly in the law, and some found in other state and federal laws. Generally, a city can answer the question of whether a particular e-mail message or document is open or closed by determining whether the "hard copy" of the same e-mail message or document would be open or closed under the law. The answer to some of these questions will be obvious while others will require thought and even legal consultation.
Reminder : Even if the city decides not to monitor its e-mail, it must adopt a policy that contains at least a provision stating that its employee’s e-mail may be a public record and subject to inspection under Tennessee’s Public Records Law and "this part." T.C.A. § 10-7-512.