Texas open meeting laws and new media

Last Tuesday, May 11, the Texas Senate State Affairs Committee spent nearly three hours discussing how the emergence of social media has changed the way governmental bodies conduct public business.

These new tools can be used by elected officials to better communicate with constituents. But as Keith Elkins, a former Capitol reporter and now executive director of the Freedom of Information Foundation of Texas, noted, elected officials could also use their cell phones, Blackberrys, laptops, and personal computers to communicate with one another in secrecy, outside of the state’s open records law and theTexas Open Meetings Act. He isn’t the first person to worry about this. Jason Stverak, president of the Franklin Center for Government & Public Integrity, worried earlier this month about the lack of archiving in new media: while public officials are more available to their constituents, the are also more available to each other through means that circumvent open meetings law.

Senate State Affairs Committee chairman Robert Duncan, R-Lubbock, recommends the Texas Legislature address how elected officials use the Internet to assure the public that no one is using the technology to violate the state’s Open Meetings Act or the Public Information Act. He also said public officials should not live in fear of being accused of violating the Public Meetings Act if they use electronic devices to communicate with others.

I wrote last week about the being behind municipalities using taxpayer dollars to sue Texas in order to “gut” the state’s open meetings law. Last year, four cities and some 20 local officials from across the state filed a federal lawsuit, supported by the Texas Municipal League, arguing that the penalties for violating the Act are harsh and unconstitutional. These penalties includ six months in jail and a fine of up to $500.
“We’ve got some good folks who are threatened with jail by innocent remarks or e-mails” said Amarillo Mayor and League president Debra McCartt.

Of course, there are consequences for a law that isn’t strict. The Illinois FOIA improvements that went into effect this year have sought to remedy lax execution of the state’s open meetings and records laws by setting up strict deadlines for compliance, and severe penalties for failing to do so.

It seems the answer is for Open Meetings Laws to explicitly state what is and isn’t acceptable, and to make clear what the exemptions to the law are. These laws need to address changing technology. It isn’t fair to officials for them to be unclear about whether their Tweet breaks the law, and it isn’t fair to citizens to be unable to access a Tweet relating to public business. Lastly, breaking the law needs to come with penalties that are strict enough to induce compliance.

Join us tomorrow on Twitter from 2-3 Eastern Standard Time to talk about Texas Open Meetings Law and open meetings laws in your state. Use hashtag #FOIAchat to talk to other transparency advocates about questions you may have or your experiences with open meetings. (If you can’t make it, our discussions are always archived.) For a topic schedule, look here.

FOIA and text messages

Perhaps the immediately obvious effect of government transparency is transparency as a tool to battle corruption and to uncover unethical behavior.

Social media, the internet, and technology in general consistently change the scope of public records. So it makes sense that most people don’t consider text messages when using open records laws, since it is a relatively recent technological development.

Of course, many government officials use government-issued phones to fulfill their daily duties. And because of the casual nature of text messages, they can be particularly revealing as to the nature of relationships.

In Illinois, the Daily Herald was able to confirm suspicions that two Elgin police officers were breaking ethics rules by having a romantic relationship. They did this by requesting text messages exchanged between the officers’ phones. Being able to FOIA for those text messages, and the city’s ability to fulfil that request, was crucial to uncovering that scandal.

But not every city is able to provide those records. In Des Plaines, Illinois, the city mayor had to bar text messages between city employees after the city was unable to fulfill a FOIA request asking for text message records. Until the city figures out how to resolve that issue, communication must be in an archivable format. It makes sense for the mayor to take the issue seriously, because when questions of openness aren’t resolved locally, they will be resolved in other ways. In Pennsylvania, the Wind Gap requested text messages from police Chief Craig Armitage and in March of this year, Pennsylvania Office of Open Records has ruled that the borough must get a copy from its cell phone provider of a record with the text messages. Kudos to the Pennsylvania Office of Open Records for making the city accountable to its citizens. The borough originally responded that it did not keep such records. If no such text message record exists, the open records office ruled, the borough is required to provide an affidavit saying that.

There seems to be much that isn’t decided yet on the matter of open government and text messages, and it seems many governments aren’t prepared to make such records available. Please share any experiences or information you have regarding text messages and open records requests.

(I began researching the matter after joining today’s #FOIAchat, a live chat on Twitter every Friday from 2-3 pm EST. I’ve found it to be a thought-provoking, and it’s a great resource for speaking with open government advocates and FOIA experts.)