Monday, May 28, 2018

Audio Recording of Public Safety Education Commission Meeting Purposely Destroyed, Suggesting Possible Tennessee Sunshine Law Violation

There were fireworks aplenty at the May 7 meeting of the Public Safety Education Commission (PSEC). Too bad we don't have the official public recording of the meeting!--more on this in just a second. 

The Commission Chair, without any notice to Alderman Massey--on the agenda or otherwise, unsuccessfully attempted to persuade the Commission to request that the BMA remove Mr. Massey as the Commission's liaison alderman. Not only that, the Chair refused to recognize Alderman Massey when he attempted to speak. To their credit, the members of the Commission, overriding the Chair, allowed Mr. Massey five minutes to defend himself after he objected to being muzzled. The Commission postponed the vote on the issue until the June 4 meeting.

The very next morning following the meeting, I made an open records request for the audio recording.  

"May 8, at 9:29am


I am officially requesting the audio for the Public Safety Education Committee meeting last night. Please ask ASAP because I suspect it may be deleted. Hopefully I can get this by sending me a link.

Thank you.

If for some reason I have to fill out a form, let me know.

My request was denied because the Commission Secretary, who made the recording, had already deleted it, just hours after the end of the meeting. But, that’s not all. Get this: Immediately upon the meeting’s conclusion, Alderman Massey specifically asked the Secretary to retain the recording. Yet, as best I can tell, the Secretary, after telling Mr. Massey that she was not required to retain the recording, went home, listened to the recording, typed the minutes, without including the content of the discussion, and then deleted the recording.
 An elected alderman, chosen by the citizens to oversee the workings of the City, was stiffed when he made a simple request that a public record of the meeting be kept. It is my understanding that it is the customary practice to retain the recording until after the minutes are approved at the next meeting-- if this is not the practice, it certainly should be! 

Alderman Massey wrote about the meeting on his Massey for Germantown Facebook page immediately after he returned home. It was his recounting of the events of the night that prompted me to make my open records request the very next morning.  Mr. Massey's Facebook post is an eloquent plea for transparency. I urge you to read it: 

Am I missing something here? Is this how government is supposed to operate--brazenly defying an elected official's request to retain a public record?   

The Secretary's deletion of the recording may well have violated state law. I asked 
Deborah Fisher, the Director of the Tennessee Coalition for Open Government, to opine on the Secretary's action. Here is Ms. Fisher's response:

"Hi Pauline,

There is nothing in state law that sets out specifically how long an audio recording of a meeting must be kept. The law requires minutes to promptly be available. 

However, the audio record IS a public record from the moment it was created. And if someone requests to inspect a public record, that record must be made promptly available.

In this situation, Massey requested the record be preserved, presumably for the purpose of listening to it later. And the custodian instead destroyed it within a day of that request.

I think that shows a clear intention not to allow someone to hear that public record, and I believe this would be a violation of the law that requires public access to records.

If he had requested a copy of the audio a couple of weeks later, and the person who recorded the audio routinely tapes over the audio and had already done so, that might be understandable. But in this instance, it appears there was no practical reason for deleting the audio except to make it unavailable. The person apparently intentionally destroyed a public record that is evidence of what happened at the meeting.

Also, if someone is taping a meeting for the purpose of transcribing or providing accurate written minutes, the reasonable and logical assumption is that you would  retain the minutes at least until the minutes are approved by the governing body at a later meeting. That way,  if there are questions, you can simply check back on the tape. To do otherwise, in my opinion, is very suspect. There would have to be a very good reason for deleting the tape or digital recording.

I would ask if there is a city policy that requires or allows the person recording the meeting to destroy the recording within one day, or before the written minutes have been approved. Lacking that, I believe the person recording likely acted intentionally to prevent someone from inspecting a public record — the audio recording of the meeting — by destroying it.  

Deborah Fisher
Executive Director
Tennessee Coalition for Open Government"

Massey put this snapshot of the
Mayor at the meeting on  

his Massey for Germantown 
Facebook Page.
I don’t know if the Secretary acted on her own when she deleted the recording. If you had to bet, how would you wager? Would you bet she did it it solely on her own without first talking to someone about Alderman Massey's request to keep the recording? Hmmm. I have sent emails to the Mayor, the Chairman, and the Secretary asking them why the recording was deleted, and asked each of them if they conferred about the deletion. If I learn something, I will let you know. But, I am not going to hold my breath.     

By the way, the Mayor, a political ally of the Chair, was present at the May 7 meeting. I cannot prove the Mayor was given advance notice of the Chair's intent to effect Alderman Massey’s removal. I do know the Mayor is far from a regular observor of the PSEC meetings, and, indeed, it may have been his first "visit" ever. 

I can also report that, in April, the PSEC Chair voiced, in an email to the Mayor, his displeasure with Alderman Massey. The Mayor, upon receipt of this email, forwarded it to the aldermen, including Mr. Massey. The Commission Chair's hostility to Alderman Massey was thus well known to the Mayor and others prior to the May 7 meeting. It bears repeating here, though, Alderman Massey was not told prior to the May 7 meeting that any action regarding his removal would be discussed.   

In this correspondence, the Mayor informs the aldermen that he is researching how to remove Alderman Massey as liaison to the PSEC, after receiving a request from the Chair  to appoint a new alderman liaison.The stated reason for the PSEC Chair request was that there is a "personality conflict."  (taken from Massey for Germantown Facebook page)

Upon learning that the audio recording of the May 7 meeting had been deleted, I asked for the draft of the minutes of the meeting:  

First off, note there is no mention of the Mayor's presence at the meeting - even though the Mayor actually addressed the group!  I wonder why the Secretary omitted any reference to the Mayor's presence?  

Note also that the vote on whether to request that Alderman Massey be removed as the liaison will now take place at the June 4 meeting

It is also noteworthy that the agenda for the June 4 meeting fails to include the "alderman liaison report." Until the May 7 meeting, the liaison alderman had always been asked to provide his insight. The effort to muzzle Mr. Massey continues apace.

What is the backstory behind all this? Is this a genuine "personality conflict" or a political "hit job"? What we know now is that the Chair's hostility toward Alderman Massey is rooted, at least in part, in Mr. Massey's suggestions regarding the way crime statistics are reported. The minutes of the March PSEC meeting state: "Alderman Massey suggested that the commission members receive the crime reports. If possible, he would like to see more detailed information on auto thefts, assaults, burglaries, etc. Primarily for the purpose of providing insight for the commission to see areas that we can improve and initiate campaigns to roll out to the public."   

I will examine this backstory, as well as the specific conflicts that arose at the April PSEC meeting, in more detail in my next blog post. Alderman Massey's version of these events may be found in the Massey for Germantown Facebook page quoted above. Reporting on April's events will be easier because the audio recording of the April 2 meeting, unlike that of the May 7 meeting, was not deleted before people could request it. Lo and behold!   

I am now going to use my best persuasive powers to try to convince City officials to be transparent in the future, and to obey the Sunshine Laws:

Dear Mayor, City Administrator, and Commissioners,  

You proudly tout the Tennessee Baldridge award that the City received last year. In any future quest to win the national award, please remember that the organization that grants the Baldridge award considers transparency a "core concept."   

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