When open records legislation was first drafted allowing unprecedented access to government information, most of these records were strictly confined to papers filed away in a cabinet somewhere.
But, the framers of open records acts across the country never anticipated that computer technology and paper reduction acts would one day mean greater scrutiny placed on digital records.
While each state has different laws dealing with open records requests, Weaver said a judge must find these digital records were both written and stored in a computer system maintained by the state in order to be considered for release.
There are certain legal defenses, however, that could prevent their release, according to Gena M. Stinnett, an associate in the public law department of Richards Watson and Gerson, P.C., in California.
For an instant message to qualify as a public record, it must relate to the conduct of the public’s business, and it must have been either prepared, owned, used, or retained by a state or local agency, Stinnett said.
“A personal message, sent from a husband to a wife, which had nothing to do with city business would arguably not be a public record even if it were stored on the city’s server,” she said. “That’s because it would have nothing to do with the public’s business.”
However, Stinnett cautions sometimes these records, however personal, are deemed as admissible, especially in cases in which a defendant is accused of abuse.
Weaver adds any record dealing with matters of confidentiality, for example, a person’s HIV status, and records that are unable to be retrieved from a state-owned computer are not required to be produced.
While there may be few defenses, Stinnett says, there are many ways to make sure a citizen’s thoughts with a government official stays between the original parties.
Keeping Conversations Private
While the issue of subjecting IM and text records to open records requests has only recently became an important topic in newsrooms and among government officials, the concerns are not new.
“If journalists are using instant messages to communicate with public officials, they know the risks they are taking,” Stinnett said. “The best way to prevent a writing – whether it is an instant message, a text message, or an email – from becoming a public record is not to create it in the first place. Making a phone call may be the best defensive position.”
Government officials can also look to technology to help protect their IMs from becoming subject to records requests.
The Office of the Attorney General of Florida uses Lotus Notes’ Sametime instant messaging application to protect their IM communications, said Deputy General Counsel Alexis Lambert. The client allows IMs to be sent and received without storing a copy of the conversation on the hard drive, therefore keeping it from becoming a public record.
“Not all IMs are created equal,” she said. “For example, on Gmail’s Gchat program, you can pull up old conversations. That doesn’t appear to be the case on other [clients] such as Facebook and MySpace. Some versions of AOL Instant Messenger have an automatic save function, while others don’t.”
The key, Lambert says, is users needn’t change their IM clients but rather learn more about them.
The future of open records
From Dann to Kilpatrick to literally hundreds of cases ongoing across the country, 2008 could very well be the year of the open IM.
While Stinnett believes it is still too early to see a trend developing, Weaver says it is only a matter of time before electronic media becomes the most frequently requested materials under state open records acts.
“People asking for government records are trying to uncover something,” he said. “The more governments rely on IM or text, the more people will request those records.”
But, is this the next big trend in governmental and media relations?
“Absolutely. The requests for electronic messages will skyrocket in the next decade,” Weaver said.
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