Using e-mail, instant messaging and voice mail has become second nature to most of us. So has it with many public officials and, without thinking, many may be violating state open meetings and records statutes when they begin conducting business in cyberspace. FOI advocates should scrutinize the use of new technology, reminding public officials about its potential abuse and seek changes in laws when necessary.
Part of the problem is that a majority of state records laws do not adequately deal with e-mail, voice mail and instant messages. Researchers at the Marion Brechner Citizen Access Project at the University of Florida found 45 of 51 laws in states and the District of Columbia don’t mention e-mail specifically in their public records laws. In 37 of those, the laws don’t mention e-mail at all. However, other provisions of law and court opinions in those states may help the public gain access to these records. In another eight states, experts said laws without e-mail provisions may preclude most citizen access.
Because of the lack of clear policies and guidelines, there is anecdotal evidence of growing abuse by elected and public officials, particularly as they collide with principles in most states’ open meetings acts.
For example, The Salt Lake Tribune discovered in January that a local health board had discussed a controversial water fluoridation issue in December 2003 in an e-mail exchange. While the exchange was first characterized as “votes,” the board backpedaled and simply labeled the virtual discussion as an “exchange of information.” A request for copies of the e-mail by the newspaper resulted in a set of e-mails scrubbed of important details. Officials said they obscured the message texts because they dealt with litigation.
Y’ALL GOT MAIL!
The Utah case isn’t the first. A Virginia judge ruled in December 2002 that the Fredricksburg City Council violated the state’s open meetings law by selecting a library commission appointee via e-mail.
In a dispute between two factions in the city, the original suit accused new guard lawmakers of “meeting” secretly to discuss everything from picking the library nominee to easing traffic congestion, rezoning applications and a developer’s contract. A month after the suit was filed, an anonymous committee ran an ad in the city newspaper displaying some of the more embarrassing e-mails, including one that used demeaning language to describe the city’s homeless.
Observers, from local activists to a high school class, packed the courtroom to hear the case. As a result of the ruling, the judge released about 1,850 pages of e-mails. After the decision, bumper stickers began appearing in town with the message “Y’all Got Mail! 2002 Email Scandal, Fredricksburg, Va.” Harry Hammitt, publisher of Access Reports, said he thinks the ruling is the first to directly address whether e-mails constitute a meeting.
Also in December 2002, Sherborn, Mass., selectmen agreed to place all their e-mail in a public file at City Hall after residents complained about a behind-the-scenes e-mail exchange in September 2002. The e-mail discussion overturned a decision made in an open meeting.
NEW GADGETS IN THE STATEHOUSE
The problem of e-mail and instant messaging may be amplified as local and state governments move to adopt technology as part of public business. For example, many state legislatures provide lawmakers with laptop computers for use at their desks inside chambers and committee room tables. Many statehouses are now wired so lawmakers have online access during debates and hearings. Some legislative watchdogs have reported the use of private instant messaging and e-mails during public meetings — activity they believe subverts open meetings laws.
The concern also has taken an interesting turn when public officials have adopted handheld messaging technology. Last year, New Orleans Mayor Ray Nagin and his staff came under fire for using handheld cell phone-text messaging devices know as BlackBerrys. Controversy surfaced after several city staffers (who brought the technology with them from the campaign trail) trashed a female city administrator who eventually was fired. While the original messages disappeared quickly from the devices, a questionable transcript filled with salty language has been embarrassing the mayor’s office ever since.
It also turns out the city’s minor league hockey team wanted to find out what staffers had been saying on their BlackBerrys and on e-mail about their deal with the city. Because BlackBerry messages disappear quickly, requesters have had little success in getting transcripts of messages. New Orleans has since been archiving its e-mail, but it won’t try to save BlackBerry messages because they consider them akin to cell phone calls.
With this growing confusion and abuse, access advocates should look for model laws and policies to deal with new technology. Open meetings laws may need to be amended. Some states now have laws governing the use of e-mail, audio links and video conferencing for meetings. Statutory language better defining e-mails as public records would also help. There are some states on the forefront of addressing these concerns. For example, the Connecticut Freedom of Information Commission has told officials that e-mail and voice mail are public records that must be retained and made accessible to the public.
At the same time, some FOI advocates say that raising such issues may make matters only worse in some states. Having no policy may be better than what the legislature may decide to do. In at least two states, that may have already happened. Rhode Island and New Jersey specifically mention limiting access to e-mail. Rhode Island lawmakers make many e-mails public except those involving communications about or with constituents and public officials. New Jersey has a similar exemption for constituent correspondence.
When it comes to modeling good laws, states having statutes that most clearly define e-mail as public records include Colorado, Montana and California. Colorado’s statute requires state and local governments to adopt a written e-mail policy that includes a statement telling employees their online missives may be public records and subject to public inspection.
Montana’s public records law, amended in 2001, expressly defines e-mail as a public record. As long as the record is not constitutionally protected from disclosure or contains otherwise confidential information, such as library records or burial site records, e-mail may qualify as a public record.
The California law defines public records to include any writing containing information relating to the conduct of the public’s business regardless of physical form or characteristics. Since 2002 in California, e-mail has been classified as a “writing.”
Joel Campbell is co-chair of SPJ’s Freedom of Information Committee. A former newspaper reporter and editor, he is an assistant journalism professor at Brigham Young University.