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Government officials use personal email and texting to avoid public access laws. Why not use technology to enhance accountability instead of to subvert it?

yougotmailBy PETER SCHEER—All public officials favor open government in principle. Who would dare say otherwise? In reality, however, they are in a perpetual search, guided by clever lawyers, for new ways to circumvent disclosure requirements–at best, because they view requests for records as a nuisance, and at worst, because they have something to hide (which can range from the merely embarrassing to the indictable).

The latest device for openness avoidance is the use of personal email accounts (and, increasingly, text messaging too) for government communications. Mayors, city council members, agency executives and school superintendents have been told that if they do government business on their gmail or yahoo accounts–anything but their official .gov email–their communications, no matter how focused on government matters, will never see the light of day.

What do your elected representatives do when they believe that their messages about government business are secret? In San Jose, city council members, like proverbial puppets on a string, take instructions during council meetings on how to vote, according to a San Jose Mercury News report on text messages sent by representatives of unions and other special interests.

The former San Bernardino County Assessor, who was arrested on drug charges and is under grand jury investigation, used electronic messaging on personal cell phones to direct his staff in partisan political activities, according to a report of an independent investigation commissioned by the county. The investigators found that the assessor and his staff had chosen this means of communicating in order to avoid creating public records.

You don’t have to be a legal scholar to appreciate the size of the loophole that this practice creates. If all it takes to avoid the obligations of the Public Records Act, California’s freedom of information law, is to use a commercial email account for official communications, then all such communications–except the occasional anodyne and self-serving message actually intended for public consumption–will shift to that private channel. The Public Records Act, already porous with special interest loopholes, might as well be renamed the California Official Secrets Act.

Lawyers for local government say that email and text messages sent or received on a private account, no matter their content, are not “public records” because they are not “. . . owned, used, or retained by” a government agency, as the Public Records Act requires. Electronic communications are “owned, used, or retained by” government only if they reside on a government server, they say. Despite the superficial plausibility of this reasoning, it is, indeed, only superficially plausible.

A government agency doesn’t do anything except through people–employees, elected officials, consultants, whatever–who are the government’s agents. Without getting too deep into legalese here, the point is that the actions of the government’s agents are imputed to the government, and the government is responsible for those actions. An arrest by a police officer, a mayor’s promise to a campaign contributor, a public school teacher’s grading of a student paper–all are actions of and by the government entity that these people represent.

The same is true for written communications about government matters that these people create or receive, regardless of the technology used or the account status. The communications are “owned,” “used” and “retained” by government because they are owned, used and retained by persons in their capacity as agents of the government.

Here’s an analogy. Suppose the mayor of your town, at a private meeting in her private home, signs a written agreement with a contractor to expand the local airport. The agreement is a paper document in the mayor’s house, miles away from her office at city hall. There is no doubt that this document is a public record that belongs to the town because it is “owned,” “used” and “retained” by the mayor as the town’s agent. Nothing changes if the document sits, not on the mayor’s kitchen table, but in the digital in-box of her personal email account at msn.com. Either way, it’s indisputably a public record that belongs to the town.

Finally, the objection is made that a search through a government official’s commercial email account for requested public records is overly intrusive. But any intrusiveness is due to the official’s choice to mix his personal email messages with his emails about government business. The remedy is not to deny citizens their access rights, but for government to adopt email use and retention policies that mitigate, if not eliminate, the problem.

What policies? Consider this proposal:

1) Agencies and local governments should set up one email account with gobs of storage capacity. To keep it simple and inexpensive, a corporate account (offering extra security) with Google or Yahoo will suffice.

2) Agencies’ .gov email accounts, by default, should “bcc” all emails to the government database account.

3) All government employees should be instructed that, when using their own commercial email account for government matters, they must “bcc” their business messages to the database account (and forward incoming business email there too). Basically, any email that is not strictly personal should be copied to the online storage account.

These three simple steps produce a comprehensive government database that provides the agency with a valuable archival resource; allows for consistent application of document retention policies; and, perhaps most important, is fully searchable using search engine technology with which all employees are familiar. Any public records requests for email can be quickly and simply processed through searches of the archive. (No IT personnel are needed!)

Many elected representatives have become proficient at using technology to thwart public access to government. Why not, instead, use technology to enhance the transparency and accountability of government?
—-
Peter Scheer, a lawyer and journalist, is executive director of the California First Amendment Coalition

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3 thoughts on “Government officials use personal email and texting to avoid public access laws. Why not use technology to enhance accountability instead of to subvert it?

  1. I work for local government in small town. 99% of my email is through my work email, but that other 1%? It runs through a yahoo account. Why? Trust me, I’m not secretly plotting fraud and mayhem. Those emails generally contain a reference to a resident that is less than flattering and while they’ve certainly earned the title of a-hole or ba$tard by their rude and hateful behavior, I’m not inclined to have my comments available for Joe Q Public.

    Not that anyone ever requests email transcripts, but still.

  2. I work for local government in small town. 99% of my email is through my work email, but that other 1%? It runs through a yahoo account. Why? Trust me, I’m not secretly plotting fraud and mayhem. Those emails generally contain a reference to a resident that is less than flattering and while they’ve certainly earned the title of a-hole or ba$tard by their rude and hateful behavior, I’m not inclined to have my comments available for Joe Q Public.

    Not that anyone ever requests email transcripts, but still.

  3. I have mixed feelings about how “open” public records laws have become. 20 years ago (or less) public officials received advice and counsel from their aides in person, or over the telephone. Now most of that communication is done electronically. If an advisor calls or visits an official and offers their candid advice that Proposal X is a really bad idea for these reasons, that advice is confidential between the aide and the official and not subject to the public records laws. If the aide sends a text or e-mail saying the same thing, now that, by sole virtue of the mode of transmission, becomes a public record accessible to anyone? Having advised public officials in the past, this is seen as an enormous problem, and in some cases, prevents public officials from getting the candid and confidential counsel they need to make good decisions without fear that every aspect of that decision process will be laid bare to the professional embarassment of those whose advice was not taken, or in some cases, of those whose advice was taken. We now question “do you want to know what we really think about this, or do you want to know what we’d be willing to admit publicly?” These are often and necessarily not the same thing.

    What you wind up seeing are incidents like these where public officials have overreacted and now seek to take all possible measures to avoid creating public records. It’s an understandable concern, and there has to be a better way of dealing with it – for example, exempting advice from professionals and advisors from disclosure. Of course, those candid tidbits are precisely the things the media wants to see. Dirty laundry sells papers & advertising. There must be a way to respect the confidentiality of advisor opinions and promote the free flow of knowledge from those who have it to to those who need to receive it before making important decisions.

  4. I have mixed feelings about how “open” public records laws have become. 20 years ago (or less) public officials received advice and counsel from their aides in person, or over the telephone. Now most of that communication is done electronically. If an advisor calls or visits an official and offers their candid advice that Proposal X is a really bad idea for these reasons, that advice is confidential between the aide and the official and not subject to the public records laws. If the aide sends a text or e-mail saying the same thing, now that, by sole virtue of the mode of transmission, becomes a public record accessible to anyone? Having advised public officials in the past, this is seen as an enormous problem, and in some cases, prevents public officials from getting the candid and confidential counsel they need to make good decisions without fear that every aspect of that decision process will be laid bare to the professional embarassment of those whose advice was not taken, or in some cases, of those whose advice was taken. We now question “do you want to know what we really think about this, or do you want to know what we’d be willing to admit publicly?” These are often and necessarily not the same thing.

    What you wind up seeing are incidents like these where public officials have overreacted and now seek to take all possible measures to avoid creating public records. It’s an understandable concern, and there has to be a better way of dealing with it – for example, exempting advice from professionals and advisors from disclosure. Of course, those candid tidbits are precisely the things the media wants to see. Dirty laundry sells papers & advertising. There must be a way to respect the confidentiality of advisor opinions and promote the free flow of knowledge from those who have it to to those who need to receive it before making important decisions.

  5. I agree Chris, there are too many evil-doers who would exploit this avenue of conversation for political gain, not the least of which is the drive-by-media. Everyone, even government officials, need to be able to have private conversations. Having said that, I really would like to be privy to the private conversations Obummer and Holder had planning and executing the Fast and Furious walking of guns into Mexico, in order to undermine the U.S. Constitution’s Second Amendment.

  6. I agree Chris, there are too many evil-doers who would exploit this avenue of conversation for political gain, not the least of which is the drive-by-media. Everyone, even government officials, need to be able to have private conversations. Having said that, I really would like to be privy to the private conversations Obummer and Holder had planning and executing the Fast and Furious walking of guns into Mexico, in order to undermine the U.S. Constitution’s Second Amendment.

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