Twitter, Texting & The Texas Open Meetings Act: The Making For Spectacularly Bad Legislation?

R.G. Ratcliffe at the Houston Chronicle points out that the Senate State Affairs Committee had a hearing yesterday in which discussion of whether Tweeting and texting may be being used to circumvent Texas’ open meetings laws.

From the story:

The Texas Legislature may become the first in the nation to tackle whether Tweeting and texting is being used to circumvent open meetings laws and whether the private devices of public officials can be subject to open records searches.

“They are new tools to communicate with constituents … and in some ways they are a better way to engage the public in the public policy process,” said Keith Elkins, executive director of the Freedom of Information Foundation of Texas.

But, he told the Senate State Affairs Committee on Tuesday, the tools of the Internet and smart phones can lead to quorum and open meetings violations.

“Everybody here today has been texting and answering e-mails,” Elkins told the lawmakers. “It is not beyond the realm of possibility that a quorum of any body has texted each other to say, ‘Yes, I’m voting’ and why.”

The issue of using the Internet and e-mail to get around public meetings laws has been a hot topic in Florida and California in the past year, according to testimony before the committee. But so far, most attempts at regulating the new technology have been piecemeal, at the city and county level.

This sounds like spectacularly bad legislation in the making. Normally an advocate for open government, I’ve got to say that if the state is looking at regulating text messages between members of government bodies, it is going to open a can of worms it cannot close, cannot effectively regulate, and will carry with it significant financial burdens.

There is a much better way to handle this issue. First and foremost, it is much more of an open records issue than an open meetings issue.

The Texas Attorney General (under both Abbott and Cornyn), has already ruled that personal email messages sent by government officials that constitute official business–even if sent from personal email accounts–constitute public records and are subject to disclosure under the Texas Public Information Act. The primary precedent for this was a city of Arlington open records decision in 2001. The current AG’s administration has continued to abide by that precedent.

Thus, should the issue of text messages being requested by a citizen arise, the AG and courts already have precedent from the Arlington opinion to guide them.

You come upon significant records retention burdens when you talk about retaining text messages. While an iPhone user may store a year’s worth of text messages on their phone with ease, users of other devices may not have such an easy or user friendly interface to do so. When you are talking about an individual legislator or city councilman’s phone, you could run into issues of having to go back and attempt to pull messages off a SIM card or in some other way that could be costly, burdensome, and, frankly, not very fruitful in terms of the data that could be recovered.

In addition, because of the state’s regulations on record retention, government officials who use text messaging would find themselves retaining messages for years–most likely long after they’ve actually replaced the phone the messages were sent on. Given that members of the legislature and most city council members and other public officials in Texas are not provided their cell phones at taxpayer expense, it is a bit to much of a burden for public officials to bear.

Note this comment from the story:

Doug Toney, editor and publisher of the New Braunfels Herald-Zeitung, said his reporters have “no idea whether it is public business” when they see city council members texting on their phones during meetings.

Only one such message ever was shown to a reporter — a text from one council member to another making fun of a former council member, he said.

Even if one city council member texted another on a particular matter before the council to, perhaps, say that a petitioner was full of himself or had his facts wrong, or to say that they weren’t voting for a particular measure, there is no open meetings violation stemming from that, just as there would be no open meetings violation if a city council member whispered that to their seatmate, or scribbled it on the back of a grocery store receipt and passed it to another member.

A quorum of city council members would have to be texting each other for there to be a potential for a quorum violation. If anything, it is an open records issue. Would the text messages constitute public records? Most certainly, if they involved city business. Should the public have access to them? Of course. Is it realistic to say that the public can have access to those text messages? Not with the restrictions of current technology.

In order for text messages to be preserved, you have to take steps to archive them. Note this from Seattle:

In an email response to a public records request for Seattle City Council Member Tim Burgess’ text messages—an experiment I decided to do after receiving numerous responses to questions I’d asked of city officials via text, targeting Burgess because he texts frequently—City Clerk Catherine Moore noted that Burgess “did not retain copies of text messages sent or received for [the] time period” requested, and that “Message content is unavailable from his cellular carrier. As per AT&T policy the content of SMS messages (text) and MMS (multi-media text messages) are not stored by their systems.”

If Burgess were a Texas public official, technically he’d be violating the law. However, I’m not aware of an easy service that allows one to archive text messages–unless you have an iPhone or a similar device. Government bodies and corporations can no doubt do so through bulk arrangements of some sort with their phone providers at little cost but most elected government officials in Texas aren’t provided with taxpayer-funded cell phones, meaning that the financial burdens associated with disclosure fall upon the elected officials who serve with little–or no–stipend.

There are, surprisingly, a number of solutions to this problem the Legislature should consider before flying off in a panic:

1. To assuage open meetings concerns, enact a statute banning text messages between members of a sitting government body during a meeting. Make them pass notes the old fashioned way–notes that, by the way, would become public record when they are committed to paper. (At any rate, it is a bit rude for city council members to text each other while conducting public business)

2. Enact statutes allowing government bodies in Texas to prohibit the conducting of public business via text message unless: (a) the device the message is sent on is owned by the government body and subject to regular archiving; (b) the device is owned by a publicly elected official and the official has contracted with a state-approved vendor to have messages archived and transmitted to the government body in question for safe keeping. This would quell open records concerns. Government bodies would either have to buy elected officials phones that are automatically archived, or individuals would have to make archiving arrangements themselves and transmit the records to the government body in question.

I doubt, however, that the Legislature will go with one of these solutions. In typical Texas fashion, I suspect something far more bizarre will be enacted.

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