Open Records Counsel Elisha Hodge told the Cleveland Daily Banner in a late-Friday email that the school board’s recent denial of information was contrary to her office’s opinion that forms filled out by individual school board members as part of a school superintendent’s evaluation can be released to anyone who requests them.
“It is the opinion of this office that the evaluations that the individual school board members submitted are public records,” Hodge wrote. “Additionally, it is the opinion of this office that if the records exist, they should be made accessible for inspection in response to the public records requests that have been made.”
During the board’s Thursday, June 12, meeting, its members voted to accept the results of the director’s evaluation after they had each filled out evaluation forms to create scores that would later be averaged into McDaniel’s latest rating of 3.58 out of 5.
A Banner reporter’s request to receive copies or view the individual evaluation forms was denied, which led to a request for Hodge’s opinion.
Hodge is the head of the Office of Open Records Counsel, a department under the office of the Tennessee Comptroller of the Treasury. Her office serves as the official state office for addressing concerns related to the Tennessee Open Records Act.
After being made aware of Hodge’s response early today, Board Chair Vicki Beaty said she, her fellow board members, the office of the director and an attorney would be looking into the matter.
“My only comment is that I will submit this to our attorney,” Beaty said. “We will look at this opinion regarding this request.”
Sammie Humphrey, assistant to the director and the school system’s records custodian, said today she would also be part of a discussion with the attorney.
In advance of the vote to accept the results of McDaniel’s evaluation on Monday, June 9, a Banner reporter called Humphrey to request copies of individual survey forms that had been completed by school board members to evaluate the director. Humphrey said she would need to consult with the school board’s attorney to see if those documents could be released.
Humphrey then sent the reporter an email the following day in which she said she had spoken with the attorney and asked that a written request be delivered to her in person.
“If you will drop this by the Central Office, we will comply according to T.C.A. 10-7-503,” Humphrey wrote.
The state statute she cited outlines the provisions allowed by the Tennessee Open Records Act.
Section (a)(1) of the portion of Tennessee Code Annotated 10-7-503 defines what can be released: “As used in this part and title 8, chapter 4, part 6, ‘public record or records’ or ‘state record or records’ means all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency.”
In section B of the same statute, it outlines how open records requests should be handled: “The custodian of a public record or the custodian's designee shall promptly make available for inspection any public record not specifically exempt from disclosure. In the event it is not practicable for the record to be promptly available for inspection, the custodian shall, within seven (7) business days: (i) Make the information available to the requestor; (ii) Deny the request in writing or by completing a records request response form developed by the office of open records counsel. The response shall include the basis for the denial; or (iii) Furnish the requestor a completed records request response form developed by the office of open records counsel stating the time reasonably necessary to produce the record or information.”
Section (2)(A) of T.C.A. 10-7-503 states, “All state, county and municipal records shall, at all times during business hours, which for public hospitals shall be during the business hours of their administrative offices, be open for personal inspection by any citizen of this state, and those in charge of the records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law.”
On Wednesday, June 11, the reporter hand-delivered a request to receive either print or electronic copies of the individual director evaluation forms filled out by school board members or to view them on the premises without taking copies out of the office.
Humphrey then told the reporter she could not view the requested documents onsite and would have to wait for response, citing the need to again seek the attorney’s advice.
Details on the process the reporter went through to request the documents were detailed in that Thursday’s issue of the Banner.
Later that afternoon, Humphrey sent the reporter an email that said “because they are ‘working papers’ as defined by Tenn. Code Ann. § 10-7-301(14), individual board member notations used to complete the final evaluation do not fall under the Public Records Act.” Attached to the email were a copy of a final “tally sheet” that averaged the director’s evaluation scores and a copy of a 1982 opinion from Tennessee Attorney General William M. Leech, Jr.
“An evaluation report of a school superintendent conducted by the members of a school board is a ‘public record’ or ‘state record’ and must be made available for public inspection under the Open Records Act, unless (1) the report is not made pursuant to law or ordinance or in connection with the transaction of the Board's official business; or (2) the report is among the ‘working papers’ of the Board; or (3) the report is made confidential by Tennessee law,” read Leech’s opinion. “The law defines ‘working papers’ as those records created to serve as input for final reporting documents, including electronic data processed records and/or computer output microfilm, and those records which become obsolete immediately after agency use or publication.”
Leech’s opinion, which was requested by Sen. Victor H. Ashe more than 30 years ago included wording that said his opinion was not “conclusive” on the matter it was addressing.
“In applying these general principles to your question, this office can not give a conclusive answer to your question without more information concerning the particular form of local government involved, the manner in which the evaluation report is made, the purpose for which it is intended and the way in which it is used by the board of education.”
Beaty addressed the matter during a school board meeting the same day the reporter was sent a response to the open records request.
“It’s my understanding that Ms. Humphrey had emailed the final evaluation for the director of schools and the tally sheet which was included in the board packet and stated that because they are working papers as defined by Tennessee Code Annotated 10-7-301 14, individual board member notations used to complete the final evaluation do not fall under the Public Records Act.”
Referencing the attorney general’s opinion, Beaty added that it “was regarding exactly the question the Cleveland Daily Banner had asked the central office.”
However, the Tennessee Open Records Counsel espoused a different opinion when she responded to an emailed request from the Banner for an opinion.
Hodge said state law does not include specific wording that says school superintendent evaluation forms filled out by individual school board members are exempt from state public records law.
“While I agree that these records are the type of records that are traditionally thought of as ‘working papers,’ I am unaware of any provision within the law that makes these particular records confidential,” Hodge wrote. “It is the opinion of this office that the evaluations that the individual school board members submitted are public records. Additionally, it is the opinion of this office that if the records exist, they should be made accessible for inspection in response to the public records requests that have been made.”
“In Tennessee, in order for the public to be denied access to a record that exists, the record has to be confidential pursuant to a provision within the law,” Hodge wrote. “The records custodian has an obligation to provide the requestor with the specific provision within the law that makes the requested record confidential.”
Her opinion was in line with one sought by Tennessee Press Association legal counsel Richard Hollow late last week. He said the concept of the evaluation forms being “working papers” did not apply.
“These evaluation forms are not working files,” Hollow said after he was sent the board response to the Banner’s request for records last week. “The opinion with which the board has used as their defense states a definitive answer could not be given without more information on the specifics.
He added that, since school systems are required by law to evaluate their directors, records tied to the evaluation process should fall under the Open Records Act.
Neither Beaty nor Humphrey indicated they had spoken with Hodge’s office regarding the state official’s legal opinion, but both said they would be looking into it.
“We will be looking into it this week,” Beaty said. “A decision will be forthcoming.”