The pace at which technology advances is often awe-inspiring. But when it moves so quickly that it overruns society’s staid and deliberate institutions, it produces no shortage of headaches and confusion.
Such is the challenge of life with technology in the 21st century. And public officials all over the state are probably still mumbling to themselves over comments made last week by Indiana Public Access Counselor Luke Britt to Tribune-Star reporter Arthur Foulkes.
As an attorney appointed by the governor to advise Hoosiers on issues and questions related to access to government records and meeting, Britt was asked his opinion about a Terre Haute official’s complaint that City Council members may have been using cell phone text messages to communicate with each other during a budget hearing last month.
The official, Redevelopment Director Cliff Lambert, wrote a letter to the council warning them that such communications during a public meeting could be considered a violation of Indiana’s access laws that require deliberations during a public meeting be conducted, well, in public.
Lambert has a point, of course. If officials on a public board suddenly started whispering to each other or exchanging handwritten notes about issues before them, it would be considered an obvious breach of the law. So why shouldn’t texting be thought of in the same way?
Foulkes asked Britt about it. What he said may still be sending ripples through official chambers of government from city halls to the statehouse.
Britt did not flinch in declaring that officials communicating via text message about issues before them would violate both the spirit and letter of Indiana law. “I would definitely consider it a violation of the Open Door Law,” Britt told Foulkes for a story published last Sunday. “I would definitely consider that closed-door communication.”
We appreciate Britt’s aggressive interpretation of the open meetings law. We agree public officials using texting technology during open meetings to communicate secretly with each other on issues would violate that law. Fortunately, council members Foulkes interviewed for his story also agreed with that position, and they claim any texting they do during meetings is on personal matters and does not have anything to do with issues before them. We take them at their word.
Still, this is a complex question, as Hoosier State Press Association Executive Director and General Counsel Steve Key explained. The issue revolves around how to know for sure if violations have occurred. In order to find out, text messages would have to be obtained from a public official. But what if the official was using a personal cell phone? If someone alleges that a violation occurred, how is it investigated? How is a text message to be recovered if it is determined to be public record if it is contained only on a private cell phone or cell service?
Key knows full well that lawmakers have been very protective of their personal communications equipment when writing access laws, and they may not react well to Britt’s opinion that their private cell phones could be subject to those laws under some circumstances.
It may be up to the courts to resolve such issues some day. Meanwhile, opinions will differ.
But we encourage local public officials to keep Britt’s advice in mind. On principle, don’t send text messages to each other during public meetings. That’s the only sure way to abide by the spirit and letter of the law.