Public officials all over the state are probably still mumbling to themselves over comments made recently by Indiana Public Access Counselor Luke Britt to a Tribune-Star reporter.
As an attorney appointed by the governor to advise Hoosiers on issues and questions related to access to government records and meeting, Britt was asked his opinion about a Terre Haute official’s complaint that City Council members may have been using cellphone text messages to communicate with each other during a budget hearing last month.
The official wrote a letter to council members warning them that such communications during a public meeting could be considered a violation of Indiana’s access laws that require deliberations during a public meeting be conducted, well, in public.
He has a point. If officials on a public board suddenly started whispering to each other or exchanging handwritten notes about issues before them, it would be considered an obvious breach of the law. So why shouldn’t texting be thought of in the same way?
Britt did not flinch in declaring that officials communicating via text message about issues before them would violate both the spirit and letter of Indiana law. “I would definitely consider it a violation of the Open Door Law,” Britt said. “I would definitely consider that closed-door communication.”
We appreciate Britt’s aggressive interpretation of the open meetings law. We agree public officials using texting technology during open meetings to communicate secretly with each other on issues would violate that law. Council members claim any texting they do during meetings is on personal matters and does not have anything to do with issues before them. We take them at their word.
Still, this is a complex question, as Hoosier State Press Association Executive Director and General Counsel Steve Key explained. The issue revolves around how to know for sure if violations have occurred. In order to find out, text messages would have to be obtained from a public official.
But what if the official was using a personal cellphone? If someone alleges that a violation occurred, how is it investigated? How is a text message to be recovered if it is determined to be public record if it is contained only on a private cellphone or cell service?
Key knows full well that lawmakers have been very protective of their personal communications equipment when writing access laws, and they may not react well to Britt’s opinion that their private cellphones could be subject to those laws under some circumstances.
We encourage local public officials to keep Britt’s advice in mind. Don’t send text messages to each other during public meetings. That’s the only sure way to abide by the spirit and letter of the law.