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Faculty Affairs Committee
January, 2001


Electronic Mail Monitoring Policy
Draft Response -- 1/29/01


The University of Tennessee's electronic mail monitoring policy, issued July 14th 2000, states "computers and computer services, including e-mail and web access, are provided to employees for use in conducting authorized University business." "The University reserves the right to preserve or inspect for business reasons any information transmitted through or stored on its computer." The policy further states "electronic mail sent or received on a University's computer" "may be a public record ... subject to inspection by residents of Tennessee." By implication, the policy makes any electronic information stored on a University computer a matter of public record. Therefore, any citizen of the state may request any file or the contents of any computer owned by the University.(1)

If all electronic information stored on University of Tennessee computers is subject to inspection by residents of Tennessee, the full range of academic endeavors of the faculty is put at considerable risk. These risks extend to research, scholarly endeavors, teaching activities, and University sanctioned compensated outside services. The implications of the policy include the following.
  1. Copyrightable and patentable works may now be subject to public inspection.
  2. Research involving human subjects including data, patient records, interventions, and research protocols may now be open to public inspection. Guarantees of confidentiality extended to research subjects by UT faculty may now be void. This loss of confidentiality extends to all human subjects who have participated or are now participating in research studies at the University of Tennessee in which data are stored on electronic media.
  3. All research data, whether involving human subjects or not, may now be subject to public inspection by citizens of the state, including representatives of commercial interests.
  4. All correspondence with students, including that involving course grades, may now be subject to public inspection. The potential opening of email correspondence with students to public inspection raises a number of significant problems.
    1. Student projects submitted via email become subject to plagiarism.
    2. Faculty conferences related to student behavior must sometimes be conducted by email due to geographic nonproximity. These email exchanges may contain sensitive material regarding student problems such as plagiarism, cheating, or unprofessional conduct. This type of essential faculty communication may now be at risk of violating student confidentiality.
  5. All electronically stored grade sheets may now be subject to public inspection. For faculty who store grades electronically, the electronic mail monitoring policy may now make it impossible to protect the confidentiality of student grades.(2)
  6. All electronically stored course materials including the entire contents of web-based courses may now be subject to public inspection.
  7. All electronic discussions (chats) held as part of web-based courses may now be subject to public inspection.
  8. Electronic correspondence, research data, or other copyrightable and patentable work related to University sanctioned compensated outside service by faculty may now be subject to public inspection.
  9. This policy will likely lead faculty to use public key encryption to protect research data, intellectual property, student information, and electronic correspondence. The matter then becomes further complicated by whether the University can demand that pass-phrases be divulged upon demand.





Section 135

Part 01

Section: INFORMATION TECHNOLOGY RESOURCES
Part: USE OF INFORMATION TECHNOLOGY RESOURCES
Effective 7/1/00 Revision #1

A. GENERAL POLICY

The use of University information technology resources is not a right, but a privilege extended in good faith to authorized students, employees, alumni, and affiliates for purposes relating to education, research, service, and administration. Responsible and acceptable use preserves the security, integrity, and availability of information technology resources and assures the authentication and accountability of each user. These resources are for use in conducting authorized University business. Their use for private business purposes is prohibited.(3)

The University, including its computing and networking facilities, is a forum for the exchange of ideas. UT cannot protect users from the presence of material they may find offensive. However, the presence of such material must not be represented nor construed as an endorsement or approval by UT.

Users must recognize that information systems can never be absolutely secure, and the University cannot guarantee the privacy of users, their computer files, or their communications. The University also reserves the right to preserve or inspect for business reasons any information transmitted through or stored in its computers, including electronic mail communications. Such business reasons include, but are not limited to, violations of this policy and any campus guidelines or procedures established to implement this policy, violations of any other University policies, or as required by law. Employee electronic mail may be a public record and may be open to public inspection.

The chief information officer, or individual designated by the chancellor or vice president of each campus and unit, has the authority and responsibility for the development of technology standards and guidelines to ensure the effective implementation of this policy.

The use of University information resources is governed by all applicable policies and the laws of the State of Tennessee and the United States. Abuse of information technology resource privileges may result in the loss of those privileges and in disciplinary action in accordance with other University policies. Abuse of networks or computers at other sites through the use of UT resources will be treated as an abuse of information technology resource privileges at the University.






Faculty Handbook

Compensated
Outside Services


(adopted February 11, 1994)
Full-time faculty members appointed to The University of Tennessee agree to devote themselves to UT's mission of teaching, research, and public service. Fulfillment of these responsibilities demands a full-time, 100% commitment to normal University duties, including remaining current in the discipline to which the faculty member is appointed. For many faculty members, an important part of keeping up-to-date lies outside the classroom, laboratory, and library: it involves testing one's academic skills and abilities by applying them to real-world problems. The University encourages the faculty to engage in consulting and other related outside services which are associated with an individual faculty member's appointment and which develop his/her professional expertise. By these means, many faculty members improve their disciplinary skills; they serve educational institutions and professional organizations, business, industry, and government; and they bring positive recognition to The University.

8. Use of University facilities, equipment, personnel, or students may not conflict with regular University operations. With the exception of facilities for the use of which there are established procedures and fee schedules, no unauthorized activity is permitted involving a significant direct expense to UT or significant use of University facilities, equipment, or services. Faculty and staff wishing to use such University resources to conduct compensated outside services must have an official written UT agreement specifying the nature of work to be performed, the kind of equipment, supplies, material or services to be used, the extent of the use, and the amount to be paid to the University. The amount may not be less than the University's cost or a fair market value. A written agreement must be approved in advance by the appropriate department head, dean/director, and chief business officer.






Analysis of Tennessee State Law on Electronic Records by the
Reporter's Committee for Freedom of the Press
1/29/01

http://www.rcfp.org/tapping/index.cgi?TN

Who can request records?

Any citizen of the state of Tennessee can request access to any records that are deemed to be records of public bodies. See Ray v. Stanton, C.A. No. 88-285-II (Tenn. Ct. App. Feb. 24, 1989)(making it impossible for a convicted felon to have the status of a Tennessee citizen, therefore, a felon may not make open records request). Cf. Curve Elementary School Parent & Teachers Organization v. Lauderdale County School Board, 608 S.W.2d 855, 859-60 (Tenn. Ct. App. 1980) (granting standing to an unincorporated association of state residents to sue under Tennessee open meetings law, which requires state citizenship to bring suit); Metropolitan Air Research Testing Authority, Inc. v. The Metropolitan Government of Nashville and Davidson County, 17 TAM 31-21 (Tenn. Ct. App. July 8, 1992) (standing granted to a Tennessee corporation to sue under the open meetings law). Neither the statute nor case law imposes restrictions as to the requester's purpose for requesting access or the use he makes of the information obtained under the open records law. See The Capital Case Resource Center of Tennessee, Inc. v. Woodall, 17 TAM 8-8, p.14 (Tenn. Ct. App. Jan. 29, 1992) ("There is no statute which provides that exemption from disclosure is or may be premised on the purpose for which the citizen intends to use the requested documents"); See also Roberson v. Rose, 17 TAM 3-28(Tenn. Ct. App. Dec. 31, 1991). (Reiterating that convicted felons lack standing to file actions under state public records act); Huntsville Util. Dist. v. Gen. Trust Co., 839 S.W.2d 397 (Tenn. Ct. App. 1992)(holding that the T.C.A. 10-7-504 term "members of the public" does not include the courts and public officials in the performance of official duties).

Whose records are and are not subject to the act?

The act grants full access to the public of all governmental records "unless otherwise provided by state law." Tenn. Code Ann. 10-7-503(a) (1995). Thus, no Tennessee agencies are entirely exempted from the mandate of the Act.

What kind of records are covered?

All "state, county and municipal records" are public unless otherwise exempted. Broad categories of records legislatively mandated to be excluded from the Public Records Act include medical records of patients in state institutions, investigative files of the Tennessee Bureau of Investigation, records of students in public educational institutions, federal military and state militia records, state attorney general records, and investigative records of the internal affairs division of the department of corrections. Tenn. Code Ann. 10-7-504 (1995). Additionally, T.C.A. 10-7-403 defines and enumerates county records that are public.

Does the existence of information in electronic format affect its openness?

The existence of information in electronic format does not seem to affect its openness. See Tenn. Code Ann. 10-7-121 (1995) (providing that government records kept on computer or removable computer storage media is available for public inspection, unless it is confidential according to law); Tenn. Code Ann. 36-1-126 (1995)(providing that adoption records maintained by electronic media are confidential and must be secured as such); Op. Att'y Gen. No. 95-01, 20 TAM 6-46 (Jan. 1, 1995) (State Public Records Commission and various county public records commissions have discretion to authorize records to be stored on optical discs and destruction of such records stored in this manner would have to be in accordance with statutory requirement). Cf. Seaton v. Johnson, 20 TAM 8-20 (Jan. 27, 1995, Tenn. Ct. App.)(Act requires that state make requested records available to requestor; it does not require that state conduct a computer search for a particular type of record).

How is e-mail treated?

The Act has no provision specifically dealing with e-mail.(4)

Athletic records.

Presumably public school and university records are open.

Trustee records.

Presumably public school and university records are open.

Student records.

Closed, T.C.A. 10-7-504(a)(4). The academic, financial, and medical or psychological records of students in public educational institutions, T.C.A. 10-7-504(a)(4) (1995) are closed.

Other.

Many such records are closed, T.C.A. 49-5-5302(c), see Op. Att'y Gen. No. 91-108, 17 TAM 4-40 (Dec. 27, 1991)(Career ladder evaluations are not open for inspection by the general public).

  1. As noted in the attached document from the Reporter's Committee for Freedom of the Press, Tennessee State statues "The existence of information in electronic format does not seem to affect its openness. See Tenn. Code Ann. 10-7-121 (1995) (providing that government records kept on computer or removable computer storage media is available for public inspection, unless it is confidential according to law);"

  2. As noted in the attached document from the Reporter's Committee for Freedom of the Press, Tennessee State statues excludes "records of students in public educational institutions". It is unclear whether grades electronically stored by faculty are covered in this provision.

  3. It is unclear how this statement applies to University sanctioned compensated outside service by faculty.

  4. House Bill 1328 required all state agencies and institutions to "adopt a written policy on any monitoring of electronic mail communications and the circumstances under which it will be conducted. ...The policy shall include a statement that correspondence of the employee in the form of electronic mail may be a public record under the public records law and may be subject to public inspection ..."


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