The Detroit Free Press’ marvelous investigation into the veracity, or lack thereof, of testimony by Mayor Kwame Kilpatrick and Chief of Staff Christine Beatty during a multi-million dollar whistleblower retaliation trial was all made possible due to Michigan’s open records laws, and The Free Press’ dogged pursuit under the law to obtain these public employee’s text messages.
The whole sordid affair underscores an important point that more and more courts and legislators seem to be undermining: Communication using publicly owned and operated property should be public record.
Increasingly, states are overlooking or ignoring the public nature of the employee’s position and the property by which he or she sends e-mail and text messages, and instead define public communication based on whether the individual is conducting the public’s business. If the communication is about the public’s business, so the reasoning goes, then records documenting the communique are a part of the public record.
Conversely under this theory, in an effort to provide public employees some measure of privacy to do ordinary personal business in much the same way the private sector employees do everyday, communications that do not involve public business are not public records.
The obvious flaw in this burgeoning rationale is that public employees conducting private business on public time may be of great public interest. Take Mayor Kilpatrick for example.
According to The Free Press, in October of 2002 Kilpatrick text messaged Beatty on a city-issued paging device, "I’ve been dreaming all day about having you all to myself for 3 days…relaxing, laughing, talking, sleeping and making love."
And yet in a very public trial, in which, as the paper reports, the two whistleblowers "accused Kilpatrick of retaliating against them because of their roles in an internal affairs investigation of the mayor’s security team — a probe that potentially could have exposed the affair," the mayor and his chief of staff repeatedly denied that they were lovers.
The city is up in arms, the mayor’s past supporters are calling for his resignation and the county prosecutor is promising to investigate. None of this would have been possible had the court narrowly read the law to exclude access to these public employees’ private communications conducted on public time using public property.