After more than three years and spending over $238,000, the Sumner County Board of Education loses its appeal in the Jakes vs. Sumner County Board of Education (SCBOE) dispute over open records, and blames the state’s Office of Open Records Counsel (OORC) for bad advice.
In March 2014, Joelton citizen activist Ken Jakes requested the Sumner County School Board policy on open records of the school system’s community relations supervisor, Jeremy Johnson, by email and phone via a voice mail message. Jakes’ request stated, “If the records policy is online, you can simply provide the link.”
Johnson denied Jakes’ request in an email response, which stated, “In keeping with our practice regarding open records requests, you’ll need either to submit your request in person or via the postal service.” Indeed, the School Board’s policy at the time required a “forced election,” as Sumner County Judge Dee Gay termed it in the original chancery court ruling November 13, 2015, when one of the choices – that a records request be in writing – is “expressly prohibited” under the Tennessee Public Records Act (TPRA).
The OORC website’s “frequently asked questions” states that “Given that a requester is not required to make a request in person and given that a request for inspection is not required to be made in writing, a government entity should accept a request for inspection by telephone, if the requester does not want to make a request in person or in writing.”
Judge Dee Gay’s ruling in November 2015 was that the SCBOE policy for the inspection of public records, although revised since Jakes’ initial request, “violates the provisions of the TPRA. Therefore, this Court enjoins the defendant from the future use of this policy.” Judge Gay later added, “This Court encourages the Defendant to adopt a policy in compliance with the TPRA as soon as possible in order to avoid further problems.”
The SCBOE filed for an appeal, and in January 2016 argued to Judge Dee Gay to stay his order to bring its public records policy into compliance until the Court of Appeals rules on the case. Judge Gay had harsh words for the SCBOE, saying it “has displayed an attitude of arrogance,” in light of “five years of blatant violation of the law” and continued operation in violation of Judge Gay’s ruling.
The Appeals Court also denied the SCBOE request for a stay, requiring that the SCBOE policy be updated by March 1, or risk being held in contempt of court.
Interestingly, in February 2016 the SCBOE took advantage of system rules that allow the board to waive a second reading of a policy on the grounds of “matters of unusual urgency,” when it took away the ability for citizens to make public comments on non-agenda items to the board during its meetings. The action established that quick outcomes are possible when the board was so motivated, but it may have also sent a message to the citizens of Sumner County that their input is unwanted.
Meanwhile, several media and citizen requests for the records related to the legal fees incurred during the open records case went unanswered or incomplete, although the Hendersonville Standard reported in December 2016 that through September 2016, the SCBOE had been invoiced over $238,000 for legal services by the politician-contributing Nashville law firm Bradley, Arant, Boult Cummings LLP.
The invoices would not have included billings for all of the work conducted by the legal firm for the appeal, the ruling from which was not filed until July 28, 2017.
The Appeals Court upheld the trial court decision that the SCBOE was in violation of the TPRA when it denied Plaintiff Ken Jakes’ request for inspection of the SCBOE public records policy. The SCBOE contended through trial court testimony by attorney Jim Fuqua that the board’s actions were based on verbal advice received through a telephone call having no written record with Elisha Hodge, Open Records Counsel at that time. According to The Tennessean, a SCBOE statement expressing its disappointment with the Appeals Court ruling, read, “the Office of Open Records Counsel, which has the legal duty to interpret the act, informed the board that its policy was lawful and that its response to Mr. Jakes’ request was appropriate under the law.”
Elisha Hodge, now a legal consultant with the Municipal Technical Advisory Service (MTAS) after leaving her position with OORC, through an email exchange respectfully declined an invitation to comment by The Tennessee Star.
During the 2017 legislative session, the TPRA was modified through HB 58 by Rep. Courtney Rogers (R-Goodlettsville)/SB 464 by Sen. Mike Bell (R-Riceville) which, among other provisions, allows “requests to view public records to be submitted in person or by telephone, fax, mail or email, if a government entity uses such means of communication to transact official business.”
