Texting During "Open" Meetings an Area of Concern

August 24, 2016

Remember the "smoke-filled room"? Of course not. Not only is smoking obsolete, but today we have federal and state open-meetings laws, meant to ensure that public business is transacted ... in public.

Comes now the smartphone, which everybody uses to communicate by text. It can be used between individuals during a meeting — say, between a lobbyist and a legislative committee member, or between two city council members making a private deal, or even between a reporter and a confidential source.

Is text messaging compatible with open meetings?

Whatever the answer, it's red meat for FOIA.

Georgia Attorney General Sam Olens recently made clear (via a spokesman) that he wanted lawmakers to rewrite open-meetings law to restrict texting during public meetings. Lawmakers took a dim view of that.

The issue came up because a resident involved in a suburban zoning fight got texts sent during a council meeting by using the state's Open Records Act. Naturally, she shared them with the Atlanta Journal-Constitution.

Courts have for several years upheld the notion that texts can be public records. The problem, of course, is knowing about them — since they are less visible than meeting minutes.

In the past nine years or more, courts ruled texts are subject to open-records law in cases arising in Detroit, Dallas, Norfolk, Arkansas and elsewhere. The rulings came under both state and federal law, and applied to the range of electronic communications — whether email, text or instant-messaging platforms.

The messages are easier to keep track of when they are on government-issued devices, which can be archived as a matter of policy. They are most obviously subject to open-records law when they are between government officials and about government business. Gray areas remain. Some states, such as Colorado, Tennessee and Florida, have already changed their laws to include electronic messages like texts.

A guide published by the Reporters Committee for Freedom of the Press delves deeper into some of the legal nuances and history, and offers a legal breakdown state-by-state.

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