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Open meeting laws may apply to officials who communicate through instant messages. From the Summer 2007 issue of The News…

Open meeting laws may apply to officials who communicate through instant messages.

From the Summer 2007 issue of The News Media & The Law, page 26.

By Jaci Boydston

As advances in technology change the way people communicate and do business, states are grappling with the issues of how e-mailing and instant messaging fit into state open record and open meeting laws.

The issue came to light this year in Idaho when state Rep. Nicole LeFavour said that the majority of House Democrats used instant messages to meet as a caucus last session. Lawmakers have asked a legislative committee to look into the matter because of concerns these virtual discussions could be unlawful.

“What’s the difference between a closed-door meeting and a quorum of individuals IM-ing?” House Majority Leader Mike Moyle (R) asked The Idaho Statesman.

Under Idaho law, conversations among legislators are considered an official meeting and therefore open to the public when a majority of the group meets. Idaho’s investigation seeks to determine whether a virtual meeting of a majority of members should be open to the public under state open record laws.

The national discussion of whether instant messages among public officials constitute an official meeting is the latest in a line of similar questions that began with one-on-one “daisy chain” conversations among officials and has grown to include teleconferences, video teleconferences and e-mail. With regard to virtual communication such as e-mail and instant messages, states have not adopted a unified approach and have focused on different elements of the communication to reach their decisions.

Retaining records

Although it is up in the air in most places whether instant messaging implicates open meeting laws, it is somewhat more settled that the messages are considered public records, at least under federal law.

David L. Hudson Jr., an attorney with the First Amendment Center in Nashville, said that classification should extend to the state level, since instant messages relating to public affairs are fundamentally the same as letters and memos relating to public affairs. He indicated that instant messages likely would need to be preserved on computer hard drives in order to comply with various state open record laws.

Tracy LeRoy, a Spokane, Wash., attorney, said that retention of data from instant messages could be the biggest challenge where such communication is found to implicate open meeting laws. 

“It’s problematic because the public can’t easily attend such meetings,” LeRoy said. “With e-mail, it’s easier to retain records, but with chats and conference calls, it is much more difficult.”

However, the open record status of instant messages might depend on the subject matter.

In a 2005 opinion, the Colorado Supreme Court found that e-mail messages between public officials only counted as public records so far as they addressed the performance of public functions or the receipt or expenditure of public funds. In that case, the court found that sexually explicit and romantic e-mail sent by public officials were not within the scope of Colorado open record laws.

This line of reasoning indicates that in some states, personal instant messaging on public computers might not be subject to open record laws either.

‘The key factor’

Some states have tried to answer questions about whether instant messages fall under open meeting laws by explicitly addressing them in their laws.

In 2004, Missouri broadened its public access laws to define a public meeting as any meeting by a majority of its members at which any public business is discussed, formulated or decided. The new law specifically mentions online chat rooms and message boards as examples of venues for public meetings.

This year, a Minnesota legislator introduced a bill to include instant messages and other electronic communication, but the bill never made it out of committee.

In states like Missouri with open meeting laws requiring a quorum a majority of board members needed to take official action an instant message between two officials is not likely to be a violation, whereas a virtual chat room involving a majority of members or an e-mail chain that has repeatedly utilized the “reply-all” function would likely violate it.

Hudson said the quorum issue often would be definitive.

“That’s the key factor under the law in most states,” Hudson said. “Very few of these open meetings acts try to prohibit one-on-one communication between commissioners or board members.”

Hudson also noted that it would be unlikely that officials instant messaging during an official meeting would violate any state laws, since that is essentially not different from one official leaning over and whispering something to another.

In addressing whether e-mail messages are meetings, courts and state attorneys general have sometimes indicated that instant messages can be as well depending on the circumstances.

Some states have focused on the nature of the interaction that is, whether a communication is passive or active, and whether it occurs in real time.

In 2004, the Virginia Supreme Court held that an e-mail conversation among public officials is not a meeting because it does not consist of real-time communication with immediate comment and response. The court found that e-mail is a passive form of communication, since messages can sit in a queue for hours or days without a response.

However, the court specifically noted that e-mail communication involving an element of immediate comment and response much like instant messaging could be considered a meeting.

Other states have used this approach. The Maryland attorney general issued a 1996 opinion stating that e-mail communication does not violate open meeting laws since the officials are not “convened” at the time of the communication. However, he added that it was possible to consider the members convened if the method of communication involved “real-time simultaneous interchange,” similar to a telephone conference call.

In 2001, a Washington appeals court considered both the nature of the communication and what type of information was being communicated in judging whether e-mail sent among school board members violated open meeting laws. The court noted that the e-mail messages likely implicated the laws since they involved “the active exchange of information and opinions” rather than the “mere passive receipt of information.”

Since an active exchange of opinion and analysis is more likely to be found in real-time instant message conversations than in e-mail, it is probable that the Washington court’s analysis would consider instant messages subject to open meeting laws.

Content matters

Florida, through a 2001 advisory opinion of the attorney general, focuses more on the content of the communication than the means.

The opinion states that e-mail correspondence between officials containing only factual information would not violate open meetings laws since the correspondence in question communicated only facts and did not solicit responses or opinions. This focus on whether the communication involves exchange of ideas likely would find instant messages to qualify as meetings on a case-by-case basis.

The Delaware attorney general’s office adopted a somewhat different approach, ruling in 2003 that e-mail only qualified as a public meeting when the subject matter of the e-mail was a matter of public business. This analysis would bring instant messages under the purview of open meeting laws depending on the content discussed.

In states that decide instant messages can be a form of open meetings, Hudson said the continued use of instant messages would be fairly messy.

“If that were made a meeting, they would have to give notice to the public beforehand and allow the public an opportunity to listen and participate,” he said.

Although some public officials are concerned about their electronic communications becoming public, Charles Davis, executive director of the National Freedom of Information Coalition, said such a price is worth it.

“I tell people who complain about e-mail being public: Democracy is a messy business,” Davis said. “You can’t do things under the cover of darkness.”