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Monday, August 25, 2008
Context Clues

How text messages fit with FOIA

Breanne Coats

Keeping FOIA relevant in our technology-friendly society does not end with databases and access to government e-mail.

Just five years ago, public officials might have considered their e-mails private. Then along came journalists and other open-records advocates who wanted access to this information. They decided that, while what they wanted was fairly modern, they should be able to get the information the old-fashioned way: a Freedom of Information Act request. In most cases, the courts agreed, and with their approval, FOIA entered the digital age.

Today, another communication trend is forcing public officials and journalists to rethink how FOIA is used: text messaging.

Many public officials likely expected that their text messages were private. But this has probably changed since Detroit journalists used FOIA requests earlier this year to get a hold of Mayor Kwame Kilpatrick’s text messages. The information revealed that Kilpatrick was involved in an affair with his chief of staff, Christine Beatty. Following an investigation, he was charged with 12 counts of perjury, obstruction of justice, misconduct and conspiracy.

Always upgrading

To keep up with traffic on the tech highway, some courts have continued to expand FOIA, but not without the dogged pursuit of open-government advocates. To succeed, requesters had to think beyond the typical FOIA requests and hold a strong sense of conviction.

One of the most obvious obstacles FOIA requesters have faced is the resistance from various governments. While most public officials use e-mails and text messages to conduct public business, some still protest when journalists expect access to those records. Public officials and open government advocates clashed this year in a few notable cases involving technology and FOIA.

Charles N. Davis, National Freedom of Information Coalition executive director and University of Missouri journalism associate professor, said most courts and government officials understand that e-mails and texts sent on government equipment or as part of their public service jobs are not much different from paper memoranda and should be open to the public.

Davis said he thinks there were a couple of reasons that technology and FOIA seemed to be a hot issue this year. One, he said, was people now have expectations that e-mails will be open. He said it’s almost become bizarre for someone to deny e-mail requests and, when they do, it becomes a big deal and a big story.

“It’s reached a tipping point,” Davis said, going so far as to suggest that the topic of whether e-mails should be open records is pretty much “water under the bridge.” However, he said states have enacted various exemptions that allow some e-mails and texts to remain out of the public eye.

For example, Michael W. Field, Rhode Island special assistant attorney general, said his state’s act is very broad. Because of the way it’s worded, it allows for any new technological advancements to fall under it, as well.

This means that, in a way, “Technology almost has to catch up with Rhode Island law,” Field said.

However, if one were to request e-mail correspondence between a Rhode Island elected official and individuals the official represents, the request would be denied. This correspondence exemption is one of the privacy exemptions that states include in their freedom of information acts.

“We will never have a day where someone is not looking for another exemption,” Davis said.

Personal vs. private

Some Dallas officials have tried to argue that messages sent from their personal BlackBerry devices are private, even if the messages were relating to official public business. The Dallas Morning News disagreed. The paper went to court arguing that, no matter what device is used, information related to officials conducting public business should be open; the court agreed with the paper.

However, it took 15 months before a court decision was made, according to Dallas Morning News attorney Paul Watler. At press time, the decision was being appealed. Watler said the case could make its way to the state supreme court.

The lawsuit resulted when two separate record requests from The Dallas Morning News reporters were denied in 2005. One request was for e-mails related to a City Council decision to give a $6.3 million tax abatement on a company’s new building. The other request was for e-mails relating to possible City Hall corruption.

Watler said the case was plowing new ground because the state’s public information act had yet to be used in requests for e-mails sent on private devices.

Dogged pursuit

In all requests for information, requesters must have some level of trust. There is no way to be 100 percent sure that all of the e-mails or text messages relating to a request have been turned over, Davis said.

Steven A. Smith, editor of The Spokesman-Review, said that whether one is requesting paper or electronic documents, an agency’s decision to fulfill the request is often based on the relationship between the media outlet and that agency. Smith added that, without a good relationship, some places will be stubborn about releasing even the most basic information.

The Spokesman-Review can tell two tales that illustrate the work and money it takes to open up electronic documents. These stories also show the rewards that hard work might reap.

Smith said that requesting electronic documents wasn’t even on his paper’s radar 10 years ago. But since 2002, Smith’s paper has spent nearly half a million dollars to gain access to paper and electronic public records because he says that maintaining access to public records and meetings is one of his paper’s fundamental newsroom values.

“The public’s business should be conducted in public — always,” he said.

The Spokesman-Review continues to support this theory and won a 2007 battle in Idaho that granted them access to public officials’ e-mails. The Idaho series revealed, as Smith said, that the Kootenai County prosecutor’s office was out of control in a couple of ways. The court ruled the public should have access to the e-mails because they revealed, among other things, the spending policies of a county program and employment-related claims — all of which should be public.

Smith said that without access to those e-mails, their reporting would have been based on “he said-she said” anecdotal evidence.

“The e-mails allowed us to put meat on those bones,” he said.

However, this was not the first time The Spokesman-Review had gone to court for electronic records. Their 2005 series on former Spokane Mayor Jim West, who died in 2006, took years of investigation and involved various record requests, including some for his e-mails and hard drive. Reporters were granted access, but Smith said they were not given complete access because of privacy concerns. He said the paper spent about a quarter of a million dollars on this series of stories.

The series shined some light upon West’s behaviors, including claims of sexual misconduct, which included using his position as mayor as a way to seduce young men. The series helped inspire the public to recall West from his position as mayor.

In both of these cases, The Spokesman-Review fought to open the records they felt should be public, and the battles resulted in two influential series. If the reporters had not thought to go after electronic records, or if the paper had not made public information a priority, then these investigative series would not have been as revealing, and one might not have happened at all.

Today, text messages are also proving to be important resources for stories. Reporters from the Detroit Free Press attempted to use records requests to gain access to text messages from Detroit Mayor Kwame Kilpatrick and his former chief of staff Christine Beatty. The records requests did not work, but the reporters procured some of the text messages from a confidential source. The messages illustrated a sexual and ethical scandal that brought forth more open records requests, criminal charges and calls for Kilpatrick’s removal from office.

The situation in Detroit is just one example of how technological advances will affect FOIA requests and where reporters should look to get information. The situation also shows that journalists should not only think outside the box when making record requests, but that they also have to make sure the courts keep up with them.

Although there is no consensus about the next technology issue facing FOIA, there is little doubt that one is inevitably on its way. And it will create a whole new chapter in the evolution of the Freedom of Information Act.

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