Open government laws struggle to keep pace with changing technology
By Adrianna C. Rodriguez
Forget the suit, the smile or the traditional wave, the indispensable accessory of the modern public official is the CrackBerry…. Uh, make that BlackBerry.
Instant access to e-mails and the Internet is a must-have for many, but the technology that allows e-mails and text messages to be sent from laptops and PDAs with the blink of an eye may also be closing the door on open government laws — and posing new challenges for public access to the meetings and records of public officials.
Gov. Sarah Palin, for instance, became notorious for trying to avoid public records requests by using private e-mail and her two BlackBerry PDAs.
During the campaign trail, it was revealed that vice-presidential candidate Palin routinely discussed state business as governor of Alaska from private Yahoo! e-mail accounts, firstname.lastname@example.org and email@example.com, rather than from her state e-mail account.
In January, after weeks of debate, President Barack Obama, whose administration has reiterated its commitment to transparency time and time again, was allowed to keep his BlackBerry. He had been pressured to give it up by Whitehouse counsel concerned that information on the presidential
BlackBerry would be subject to the Freedom of Information Act, and by security personnel worried about hackers. Nonetheless, the president persisted. The content of the communication ultimately will decide what messages transmitted from Obama’s BlackBerry will be subject to the Freedom of Information Act.
With the eyes of the national and international media and the public on the president, it seems certain Obama’s BlackBerry will be closely guarded for both security and public records. But what about the less-known town mayors and city commissioners who don’t garner international interest? Who’s watching their BlackBerrys?
“Keeping up with technology presents huge challenges to Florida’s Government in the Sunshine law,” said Sandra F. Chance, Esq., (JD 90) executive director of the Brechner Center for Freedom of Information at the University of Florida and McClatchy Professor in Freedom of Information at the College of Journalism and Communication.
Florida’s open meetings law, also known as the Sunshine Law, was passed in 1967 and is one of the strongest in the country. However, Florida isn’t one of the 23 states across the country that addresses the use of technology in conducting public meetings in state open meetings statutes.
Regardless of the technology used, public officials in Florida must still comply with the requirements of the state’s Sunshine Law, which include giving proper notice for a meeting, allowing the public to attend meetings and taking minutes of the meetings, said Chance.
However, the ease of sending e-mails and text messages has made it easier for public officials to communicate with each other about public business outside of public meetings.
“New technology can be very beneficial and increase public participation in
the government decision-making process,” Chance said. “But, the same technology has the potential to increase secrecy. So, new technologies should not be used until it is clear that all the requirements of Florida’s open meetings and public records laws can be met.”
The problem of public officials conducting city business via private e-mail was at the center of an 11-month lawsuit against the Venice, Fla., City Council. The lawsuit alleged that several current and former city officials had used e-mail to conduct business out of the public’s view, which constituted an improperly noticed meeting. The suit also alleged that the officials had used liaisons to communicate with each other about city business, and had improperly saved or deleted e-mails related to city business.
In the settlement, the city council admitted to violating the Sunshine Law, but no individual commissioner admitted wrongdoing.
“When it comes to e-mail the same rules apply,” said Alexis Lambert (JD 04), appointed by Attorney General Bill McCollum as Florida’s Sunshine Law attorney. “You can’t control what you receive in your private e-mail, but you can control how you respond to it. You can’t launder your government e-mail by sending it to your Hotmail account.”
At the Florida Attorney General’s office, Lambert has seen an increase in complaints about officials using e-mails, text messages and instant messages. She’s even received calls from constituents who can see instant message boxes reflecting from computer or PDA screens on the glasses of public officials during meetings.
“The medium is unimportant, the content is key,” Lambert said. “It doesn’t matter if you are using smoke signals, instant messages or BlackBerry pens.”
Although it is not a violation of the law for public officials to use text messaging or instant messaging for personal matters, the appearance of impropriety is enough to raise eyebrows.
“The potential for abuse is clear and we’re seeing more and more cases where officials are texting during meetings,” Chance said. “If they can’t talk about the issue outside of the meetings, clearly they can’t talk about it via texting. And, when officials are texting during a meeting, there’s an appearance of impropriety, even if they’re just sending a text to their kids. So, it’s just better not to text about or during government business, period.”
In the states that have addressed technology in open meetings, most laws allow for the use of technology so long as the public can access the meetings. Many states have also established management and retention policies for archiving e-mails and instant messages, but Florida so far has not been among them.
Earlier this year, the e-mail retention policies of the Florida legislature came under scrutiny when a spokeswoman from former Florida House Speaker Ray Sansom’s office revealed that his office deleted his e-mail every 30 days to make room on the server and that House members could decide whether to archive e-mails.
The Associated Press requested Sansom’s e-mail in connection with a meeting of the president and trustees of Northwest Florida State College, a public college, and in connection with a $110,000 job Sansom accepted at the college before becoming House speaker.
Sansom is under investigation for, among other things, Sunshine Law violations in helping to arrange the meeting that may have been improperly noticed and at which no minutes were taken.
Retention and archiving e-mails, text messages and instant messages presents one of the greatest problems for access and public records because different service providers and versions of programs have different retention schedules.
“Not all instant messages are created equal. It really hinges on what software format you use,” Lambert said, explaining that different companies and different versions make all the difference in terms of ability to archive.
Additionally, not all cell phone providers have the same retention schedules for text messages.
Most users are unaware of their service provider’s retention policy. Such was the case with the now infamous Detroit Mayor Kwame Kilpatrick, who unwittingly paid for six months of message retention in his wireless plan. That proved to be fateful for the mayor. In 2008, Kilpatrick resigned and served 99 days in jail for obstruction of justice after sexually-explicit text messages obtained by The Detroit Free Press revealed he and top aide Christine Beatty had perjured themselves at trial. The text messages revealed that both Kilpatrick and Beatty had lied during testimony about their sexual relationship and about the firing of a police chief. Beatty served 69 days in jail for obstruction of justice.
In Florida, the problems created by new technology were among the issues addressed by the Commission on Open Government Reform in the Final Report released in January. The commission was charged with reviewing Florida’s open meetings and open records laws and issuing recommendations for improvement of those laws. Its recommendations included prohibiting text messaging and instant messaging during public hearings or meetings and a call for all state agencies to develop a process for public access to public record e-mails, among other things.
Chance said most public officials intend to abide by the Sunshine Law but may not fully understand the requirements of the law, especially with technology changing so rapidly. Improving public officials’ access to education and training on compliance with public records and open meetings laws could be one avenue to improving compliance.
To this end, in March, the Florida Attorney General’s office launched MyFLSunshine.com. The Web site hosts training videos on compliance with different aspects of the state Sunshine Law and a searchable database of attorney general opinions on matters related to open government questions.
In the wake of the Sunshine Law suit, the city of Venice has implemented a new policy that prohibits council members from using private e-mail accounts for city business, requires all public officials to attend Sunshine Law training and requires officials to forward to their city e-mail accounts all e-mails regarding city business sent to private e-mail accounts.
“While these new technologies make our lives easier, no question about it, officials could violate the laws if they use them incorrectly to conduct public business,” Chance said. “A democratic society isn’t always the most efficient, but it is always the most effective.”