“The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.” – Open Public Meetings Act Legislative Declaration
On government transparency, Washington has a lot to be proud of. Though the Legislature exempts itself, our open meeting and public record laws for local government are among the most robust in the country. Unfortunately, as is often the case with government, the rules haven’t kept pace with changing technology.
You’d think that a tech savvy state like Washington would be quicker to adapt.
While the rules have been successfully interpreted to cover email, which also creates a handy searchable database for records requests, these days we can easily communicate through SMS or text messages and a variety of social media platforms on handheld devices.
This issue recently came up in a court case involving Pierce County. Sean Robinson at The News Tribune frames the debate:
Does the public have a right to see Pierce County Prosecutor Mark Lindquist’s private phone records if they include work-related information?
Lindquist acknowledges he uses his private phone for work purposes. No county policy or state law prevents him from doing so. County spokesman Hunter George said the county is developing a policy regarding personal devices, but it’s still in the early stages.
I don’t have all the details of the case and trust the courts will handle it appropriately. Two Superior Court rulings have gone in favor of the County. What got my attention was the apparent lack of policy for such communications.
Broadly speaking, government business should be conducted using government property so that records it creates are archived for inspection upon demand by the public. However, it appears that policy has not kept up with the reality of how we now live and work.
One reason this issue is best settled by legislative bodies rather than the courts is that there are times that public officials may need to communicate where government property cannot, and should not be used. For example, political activities are strictly prohibited from use of government resources, be they copy machines, email, or cell phones.
Obviously these discussions can get into policy, so the questions is, where do we draw the line? Courts can make interpretations of the law, but when the law is silent, that’s a challenge.
Public records law gets particular tricky in social media where the lines can be blurred to an even greater degree. I’ve always been active on Twitter, Facebook, and my blog about City business, but they are my own property. While state law isn’t clear, I’ve followed guidance from the Attorney General’s office and kept them all open for the public to see and archived in case of a records request. When emails about City business came to my personal email, I forwarded them to my City email in order to create a record.
On the other hand, I’ve mixed my personal social media for both City and campaign business. Some might consider that to be inappropriate. As a result, the City of Seattle has created official accounts for their electeds that are separate from their personal or campaign accounts. The problem as I see it is that this can be less useful for the public and discourages the kind of public engagement I think the law was intended for. I’m not sure who’s right, but lacking clear policy, you’ll get ad hoc approaches to compliance which serves no one very well.
In the case mentioned above, there are some additional concerns related to privacy of victims, legal strategy, and other protected information that cannot be subject to public records. I’m confident that any breach of rules, if there was any, was accidental and largely the result of a lack of clear guidance. But the public must be able to trust that’s the case absolutely.
Unfortunately, there are a large number of examples of government officials using private means of communication to get around public disclosure. Inevitably, it’s when they’re discussing something embarrassing, which is to say something they probably shouldn’t be doing. Former Alaska Governor Palin and more egregiously, Wisconsin Governor Walker are two well known cases.
I don’t have much faith in the Legislature tackling this issue in the near future, so I think it’s time for the County, and local government in general, to take the next step. So does the TNT Editorial Board. Gray areas in the law are an invitation to evade the law.
But we shouldn’t stop with reactive policy. With the cloud making storage increasingly cheap, we should make as much information as is possible, accessible to the public in easily searchable databases. We should release data gathered by the government in common formats so that researchers and programmers can work with it for consumption in meaningful ways. Who knows what valuable resource we could get in return?
Hopefully, the County Council won’t wait long to adopt new open government policies. If they haven’t by the end of the year and I’m successful in the upcoming election, I’ll make it a priority to get it done.