Open Records Challenged by Social Networking
With “tweets,” “IMs” and other “new” modes of communication quickly becoming mainstream and E-mail already considered passé, state officials are wrestling with how to ensure that public records and the officials who generate them remain public in the face of an ever-widening array of ways in which people can talk to each other.
Following revelations last year of secret BlackBerry communications between Public Service Commission staffers and the lobbyists whose industries they oversee, Attorney General and Republican gubernatorial candidate Bill McCollum set up a task force to study ways to police the airwaves to ensure that Florida’s public records law is enforced.
On Monday, the Sunshine Technology Team conducted its third, and final fact finding meeting with agency IT staffers and public record advocates on the emerging social networking universe now dominated by FaceBook, Twitter, but also including instant messaging and other tools.
The new ways of talking to each other pose significant challenges for government records watchers because they operate outside the traditional information chain upon which open records law has historically focused.
“Our main purpose is to bust the myth that these are private communications,” said Joe Jacquot, deputy attorney general and McCollum’s chief of staff. “We need to understand it and apply Florida’s open record laws to it.”
Under Florida law, the form of a record is irrelevant. The determining factor is whether the record “is made or received by the public agency in connection with the transaction of official business.”
So theoretically, if one agency official sends an instant chat message on Facebook to someone that involves official business that should be a public record.
But despite having one of the most expansive public records laws in the country, Florida is behind the curve when it comes to social networking avenues, said John Fasio, the AG’s lead systems administrator. It’s also behind on instant messaging, a gap that became apparent last year when PSC staff came under fire for communication with industry officials via BlackBerry during a rate case.
In September, McCollum announced his office would begin retaining BlackBerry messages sent between state phones, which had come under scrutiny because critics say they skirt public record laws by not being readily available later. He also set up the "Sunshine Technology Team" to develop future policies on electronic communications by state officials.
Florida is not alone as state governments around the country scramble to keep up with social networking technology and instant messages.
Even E-mail, now considered an old mode of communication, hasn’t been addressed in many states. A review by the National Conference of State Legislatures says only six states—Colorado, Delaware, Montana, New Jersey, Rhode Island, and Texas— have statutes that specifically outline that legislators’ e-mails are public records. Other states including Alaska and Florida focus on content. In Florida, E-mail is clearly covered – most state Email messages contain a warning that the content could be a public record.
Of equal concern is the ability to retrieve and catalog such information, officials on the task force said. With so many options of instantaneous communication, the question of what records need to be archived and how to do that are still being worked out.