By Sigmund D. Schutz
Something needs to change when state employees in Maine conduct public business using instant messages that cannot be archived or made available to the public as required by the state’s freedom of access laws.
Under Maine law, all electronically stored information, including e-mail and text messages, qualifies as a public record. Without a technological solution that would allow archiving and retrieval of text or instant messages, however, the very act of using an instant message amounts to a violation of law, in that it creates a public record that is not being preserved for public inspection.
As a result, Maine banned last month the use of instant messaging by state employees conducting public business. The state’s updated Public Communications Policy (.pdf) reads:
All official state business conducted electronically must be sent through the state’s email system to allow for retention under state archival statutes. Official state business may not be conducted through any other electronic means, including but not limited to unofficial email, text messaging and instant messaging.
The policy change is an appropriate way of reconciling the tension between the state’s obligation to archive and make public records available to the public on request, and a technology that is inherently difficult — if not impossible — to meet to those requirements. Text messages on certain devices, such as BlackBerry, are not stored by phone companies or on state servers, are virtually untraceable, and cannot be retrieved and made available in response to public records requests.
Most troubling is that the change in policy comes in the wake of disclosures that a few state employees had chosen to use instant messaging precisely because such messages are not archived and could not be made available to the public on request. According to sources at the Governor’s Office, this was an isolated incident but it is not clear whether any investigation was undertaken to determine the scale and scope of the problem. No one appears to know just how many state employees were conducting the public’s business using instant messaging technology or the extent of such communication. One won’t find what hasn’t been looked for.
The problem may have been more widespread than reported. About 2,000 state workers have state-issued smartphones and another 2,500 have personal smartphones connected to the state’s wireless plan. It is reasonable to assume that many of the remaining 16,000 state employees have smartphones too, even if not reimbursed by the state.
When should state employees resume conducting public business by instant message? The answer: Once Maine invests in an IT solution to capture those messages, store and archive them, and make them available in response to public records requests as required by law. According to a report in Government Technology, Orange County, Florida, did just that, at a cost of nearly $100,000 plus $20,000 per year for support services. Orange County’s population (1.2 million) is about the same as Maine’s (I was unable to quickly locate the number of county employees). Those costs are not chump change, but on the other hand, what’s the cost of undermining confidence in public institutions by doing official business in secret through untraceable instant messaging?
Sigmund is an attorney practicing in media law and general litigation. He is member of NEFAC’s Board of Directors. He can be emailed at sschutz@preti.com.