Robert Becker, Lori Mince and Joey Senat discussed best practices and best outcomes when issues related to email and digital communications are legislated or litigated in states. The panel was moderated by Scott Sternberg.
Please find the speakers' biographies here.
Lori Mince started by discussing how to identify whether email records are public records. The key is to find out how a state defines public records, she said. The toughest part of email records from an open government perspective is email about public business sent from a private email address of a public official.
Joey Senat identified the issues regarding public official's email records.
"State public records laws do not necessarily prohibit government officials from using their privately owned electronic communication devices to do their work," Senat said. He said content of emails, not ownership of devices, should determine whether it is a public record.
Senat provided solutions to the matter:
- Rewrite state FOI statutes to articulate that records of public business are subject to disclosure even if the government official owns the device or account.
- Expressively prohibit in the proposed statute.
- Require government to follow and archive those records within a certain amount of time.
Robert Becker talked about the situation in Washington, D.C. and text messages as records. He said a major problem with the use of text messaging is that ISPs and phone companies have their own retention schedules.
Scott Sternberg discussed the problems in New Orleans and recommended ways to find out if public officials are discussing public business through emails prior to or during public meetings. He said that there is not really a way to do that. The best solution is developing news sources who are willing to disclose wrongdoings of government officials.
Mince advised journalists to ask for documents in their “native electronic formats.”