TRANSPARENCY TUESDAY: “Texting while legislating” is dangerous — and maybe illegal, too

Ever go to a museum of modern art, or an avant-garde film festival, and have the feeling that there’s something going on beneath the surface that you’re just not getting?

Some government meetings are like that, too. There’s the meeting you’re seeing — and then there’s the meeting that’s actually going on, in the laps of the participants.

At least one state, Texas, is considering outlawing the practice of “texting-while-meeting.” The proposal’s sponsor says the ban is necessary both for ethical reasons — for example, to prevent lobbyists from sneaking hidden messages to county commissioners while a vote is pending — and as a matter of common courtesy to speakers who’d like their elected officials to actually pay attention. Many cities, counties and school boards are considering such prohibitions as well.

Under the law of every state, meetings of government committees — including any type of a decision-making committee of a college or school, with a few confidentiality exceptions — must be open to the public. If the committee’s business is instead being discussed in emails and text messages between the members and outside of the public’s view, that can be a violation of both the open-meetings act and — if copies of the messages are not retained and promptly turned over on request — of the state open-records law as well.

(The idea that a text-message exchange can be a “meeting” for purposes of public transparency is not new. Back in the pre-texting days of 1998, a New York court ruled in Cheevers v. Town of Union that a “serial meeting” of individual phone calls between the members of a town council to formulate city policy was a violation of state law.)

Journalists who believe they’ve been witnessing a meeting-within-a-meeting via electronic back-channel should serve the agency with a written request to produce — and, importantly, to preserve — all electronic communications between committee members during the time frame immediately before, during and after the meeting relating to government business.

Getting access to text-message records presents unique logistical issues. First, many state public records laws apply only to documents that are kept in the custody of the government agency. If the message exists only on a committee member’s personal phone, that may not technically qualify as a government record for disclosure purposes.

Even if the law does apply, the message may have been read and immediately deleted — retrievable, if at all, only by a request from the account-holder to the mobile carrier. But if the message does fall within the state’s public-records act, the fact that it is physically held by a non-government third party doesn’t generally excuse the government agency from retrieving it; otherwise, state agencies could put all of their documents out of reach by dumping them in a warehouse belonging to a private vendor.

While a request may result in a denial or in an incomplete document production, that isn’t a reason not to try.