Texts. Tweets. Public record? Elected officials in legal quandary over new media, devices

Texts. Tweets. Public record? Elected officials in legal quandary over new media, devices

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It has become a common sight in society: someone with phone in hand, busily tapping away.

But when done by a public official, that practice might be more than an annoyance or a breach of etiquette.

The growing use of Twitter and texting has some wondering whether such electronic communications by government officials should be considered public record. Public officials now must retain all emails that relate to their position, even if sent from a personal computer or other electronic device.

It’s why La Crosse council President Audrey Kader advises her colleagues to use their city-provided laptops, or at least their city email accounts, when responding in any official capacity. Otherwise, they could be forced to submit a home computer for search if an open records request is made.

But text messages have been a gray area. They’re written communications but done from phones that might have little storage capacity and few means for downloading.

So are texts like phone calls? Or like emails? Several legal experts contend they are a form of public record, even if state law now has no clear guidelines on what’s acceptable for meetings or other communications from personal electronic devices.

La Crosse City Attorney Stephen Matty said his default rule about written communications, no matter where sent from, has been, “if you’re doing stuff that’s city business-related ... then that’s a record that needs to be retained.”

The crux of texting

These types of electronic communications haven’t been much of an issue locally. Virtually every La Crosse city council and county board member interviewed for this story said they’d never used texts to communicate with other officials, if they even texted at all.

But it came under scrutiny in Madison after the city council in November 2011 ap-proached a final vote on whether to keep $16 million in tax incremental financing for a proposed $98 million downtown hotel, according to the Wisconsin State Journal.

While Madison council members — and even representatives of the hotel developer — exchanged texts on the project and speculated on potential votes to approve, no open debate took place before the vote, which deadlocked 10-10, killing the proposal.

The State Journal examined hundreds of those texts and found no apparent violation of the Open Meetings Law. But the behind-the-scenes discussions seemed to skirt the spirit, if not the letter, of government operating openly.

“Fundamentally, it’s not a lot different from passing notes back and forth (on a council),” said Dan Thompson, executive director of the League of Wisconsin Municipalities, “except that has a record.”

And text messages often don’t, unless the person makes an effort to save them, as Madison council members did at the direction of city legal staff.

Most governing bodies have not adapted their policy to the evolving technology, said Madison attorney Robert Dreps, an expert in the state’s Open Meetings and Records laws who spoke on the topic to government attorneys at a State Bar Association conference in September.

“It’s recorded information,” Dreps said, “that should be archived and retrieved if it concerns public business.”

Matty and his counterpart at the county, Corporation Counsel David Lange, both said they have nothing on the books specifically addressing use of texts and other, newer forms of electronic communication.

That’s not uncommon and not surprising, said Thompson of the League of Wisconsin Municipalities.

Most government and elected officials still come from generations that haven’t really adopted texts and social media, Thompson said, adding, “I don’t text.”

La Crosse Mayor Matt Harter has been noticed typing into his cellphone at meetings but said it’s personal, not job-related.

He tries to avoid texting or emailing at all during meetings, Harter said, but during “lull spots” might quickly tap a short message out, something as simple as advising the person at the other end he’s in a meeting.

But he can see why it would become a concern, one perhaps worth examining further, the mayor said.

Madison’s policy states text message communications by public officials are permissible if they are saved as public record and don’t violate state laws, which prohibit emails and instant messaging from creating a “walking quorum” that can decide government business outside a public meeting.

Some communities, such as the cities of Denver, Colo., and Ann Arbor, Mich., have placed limits on electronic communications between council members, according to the State Journal.

Dreps said he knows of no legal decisions so far regarding text messages as public record but expects it’s just a matter of time.

Jim Jorstad, director of academic and information technologies at the University of Wisconsin-La Crosse, said he advises staff to consider anything they send electronically to be open and retrievable.

“If you’re subpoenaed,” Jorstad said, “anything’s fair game.”

A new generation

Andrew Londre, elected to the La Crosse County Board earlier this year in District 9, sees electronic media as a means to keep his constituents informed on what he is doing as a county supervisor and member of the city’s Neighborhood Revitaliz-ation Commission.

He regularly posts on his Facebook page and Twitter feed, sometimes only moments after a vote.

He represents a more urban, younger area of La Crosse that might not be able to attend the meetings. “I think using and embracing new types of media is a way to engage more people, a larger audience,” Londre said.

That hasn’t always sat well with others working with Londre. City Planner Larry Kirch cut short a report to the neighborhood commission in August after noticing Londre and another member of the panel typing on their phones.

It led to a testy exchange on what’s acceptable during a meeting, with Kirch labeling the practice “rude.” Londre said he later apologized to Kirch but explained, “I also was trying to inform people.”

District 12 city council member Sara Sullivan, chairwoman of the commission, said she’s not bothered by the texting but can understand why others might be.

As a UW-L professor, she had to adjust to seeing her students busily typing on their phones. Though some could be cruising the Internet or sneaking a peek at email or social media sites, she came to realize most were taking notes.

“It’s easy to jump to the wrong conclusion,” Sullivan said. “I just think we need to recognize that some people use their phones the way some of us use laptops.”

While she doesn’t text, her children do. “If you want to communicate with young adults,” Sullivan said, “you need to text them.”

Still, if her students are not paying attention in class, that’s their choice, Sullivan said.

A public meeting, she acknowledged, is a different setting and set of rules. Those on the commission would be expected to give their full attention.

Londre agreed that in La Crosse County it’s probably a generational issue, with few county or city officials beyond his few fellow 20-somethings in public office — such as Karin Johnson on county board or city council member Katherine Svitavsky — likely to turn to electronic communication.

And Londre said he would be uncomfortable with the idea of an actual discussion going on electronically outside a public meeting. He doesn’t use texts during meetings, he said, and his Twitter feed is posted for all to see.

His aim is to make the process more transparent, he said, not shut the public out.

“That makes me a little queasy,” Londre said of texts between members of county board or city council. “Even if it’s legal, that doesn’t necessarily make it right.”


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