c. Text messages

There is no statutory or case law addressing this issue.

There do not appear to be any cases or authorities addressing text messages as meetings at this time, and in general, the same considerations set forth in §I.D.3.b of this Open Meetings Guide concerning e-mails should be applicable.

The same reasoning that applies to email communications in Section I(D)(3)(b) above would apply to text messages as well.

There is no statutory or case law concerning text messages, specifically, but the Attorney General has opined that sequential electronic discussions could be considered meetings under the FOIA. Ark. Op. Att’y Gen. No. 2008-055.

Use of text messaging by a majority of a state or legislative body, either directly or through intermediaries, “to discuss, deliberate, or take action on any item of business that is within the subject matter” of the state or legislative body would violate both the Bagley-Keene Act and the Brown Act.  See Cal. Gov’t Code 11122.5(b)(2); Cal. Gov't Code § 54952.2(b).

Yes. "Meeting" means any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication. See Colo. Rev. Stat. § 24-6-402(1)(b).

There are no reported court decisions on this issue.

Although the Act does not specifically address text messages, such messages have been requested under the Act. Del. Op. Att'y Gen., No. 09-ib04 (June 4, 2009).

Although the Open Meetings Act does not specifically address meetings conducted by text message, it applies to meetings held by any "means of communication."  D.C. Code Ann. § 2-574(1).  This catch-all category may include text messages, especially when read in light of the instruction to construe the Act broadly to maximize public access to meetings.  Id. § 2-573.  No reported case in the District of Columbia has considered whether text messages are sufficiently analogous to e-mails to come within the statute's exemption for e-mail exchanges.

While no formal decision has been made, the Office of the Attorney General issued an Informal Advisory Opinion on June 3, 2009 suggesting that text messages that are some way connected to “official business” would be subject to disclosure. The opinion further stated that it is well settled “that no means should be used to circumvent or evade the requirements of the Public Records Law.” However, officially the office declined to render a formal opinion regarding text messages sent or received during workshops or official meetings.

The Act does not authorize agencies to meet by text message.

There is no statutory or case law addressing this issue.

Text messages, instant messaging, and online message boards are not addressed in the statute or in case law. However, according to the Idaho Attorney General:

"members of a public board may not use computers or texting to conduct private conversations among themselves about board business. A one-way e-mail or text communication from one city council member to another, when it does not result in the exchange of council members’ comments or responses on subjects requiring council action, does not constitute a meeting subject to the Open Meeting Law; however, such e-mail or text communications are public records and must be maintained by the records custodian for public inspection and copying."

Office of the Attorney General, Idaho Open Meeting Law Manual, pg. 16 https://ag.idaho.gov/office-resources/manuals/.

A text message qualifies as a “meeting” under the Act to the extent that it is a “contemporaneous interactive communication.” See 5 ILCS 120/1.02. However, the quorum requirements must still be met. For example, if a mass text message is sent to “a majority of a quorum of the members of a public body held for the purpose of discussing public business,” then the text message could fall within the definition of a “meeting.” See Id.

The Act does not address text messages. But the Indiana Public Counselor Handbook addresses the question of whether email exchanges are meetings, and a similar analysis could apply to text message groups: “[w]hether an email exchange is considered a meeting is largely dependent upon the nature and intent of the communication. If the governing body is trying to communicate simultaneously and expecting an immediate call-and-response type dialogue for the purpose of taking official action on business, the exchange constitutes a meeting.” The Handbook is available at the following link: https://www.in.gov/pac/files/PAC%20Handbook%202017.pdf.

Not unless the system would permit "a gathering."

Interactive communication, for the purposes of KOMA, requires a mutual or reciprocal exchange between or among members of a body or agency subject to KOMA. Kan. Att’y Gen. Op. 2009-22.

The Open Meetings Act does not provide for meetings via text message. See 17-OMD-165. The Open Meetings Act is not necessarily violated when a member of the public agency sends or receives text messages during a public meeting, but discussion of agency issues among members via text message during a meeting could violate the Act.  See 18-OMD-60.

No specific provision, but “meeting” is defined as “the convening of a quorum of a public body,” so text messaging between persons could be subject to the Open Meetings law only if the people exchanging messages constituted a quorum of the public body.

There are no Maine decisions on whether text messages constitute a meeting, but the purpose of the public meetings law is broad and prevents the use of electronic means to hold meetings.  “It is further the intent of the Legislature that clandestine meetings, conferences or meetings held on private property without proper notice and ample opportunity for attendance by the public not be used to defeat the purposes of this subchapter.”  1 M.R.S.A. § 401.  The same logic applicable to e-mail applies to text messages.

There is no statutory or case law addressing this issue. But see 9 OMCB Opinions 259, 265 (2015) (discussing likely treatment of electronic communications by the courts and the factors to be considered).

Not addressed by the law.

Text messaging is not one of the permissible forms of electronic meeting under the Open Meeting Law.

No specific reference in the Act, but presumably covered by § 25-41-3(b).

Since electronic discussion during the convening of a quorum of a public body constitutes a meeting, it is prohibited unless the public has contemporaneous access to the texting.

There is no law on point. The Attorney General has opined that text messages exchanged by the Mayor and members of the Omaha City Council during a Council Meeting are public records. Disposition Letter, Leslie Donley to Michael Cox, dated 5-14-15.

Text messages that are used by a quorum of the members of a public body to deliberate towards a decision or that are used to poll members of a public body are likely covered by the law.

No. See RSA 91-A:2,III.

Any "gathering" by means of electronic equipment which is open to all members of the public body is subject to the provisions of OPMA if conducted with the intent to discuss public business.

There is no statutory or case law addressing this issue.

Not addressed.

Questions have arisen about public officials texting each other during meetings, and open government advocates take the position that such activity violates the Open Meetings law requirement to provide public access to electronic meetings. G.S. § 143-318.13(a).

Simultaneous communication between a quorum of a governing body through text messages may be considered a meeting subject to the open meetings law. See N.D. Op. Att’y Gen. 2007-O-14 (2007); N.D. Op. Att’y Gen. 2018-0-10. Text messages, like e-mail, can be used for ministerial purposes, such as setting a meeting date and time, or providing information to review before the next meeting. N.D. Op. Att’y Gen. 2018-0-10.

The Supreme Court of Ohio has stated, “R.C. 121.22 prohibits any private prearranged discussion of public business by a majority of the members of a public body regardless of whether the discussion occurs face to face, telephonically, by video conference, or electronically by e-mail, text, tweet, or other form of communication.” White v. King, 147 Ohio St. 3d 74, 78, 60 N.E.3d 1234, 1238, 2016-Ohio-2770, ¶ 15.

No electronic or telephonic communications, except for videoconferences specifically allowed in 25 O.S. § 307.1, among a majority of the members of a public body shall be used to decide any action or take any vote. 25 O.S. § 306.

The statute does not specifically address text messages. However, if a quorum of a governing body is text messaging about a decision or using text messages to deliberate toward a decision, the Public Meetings Law applies. Notice and an opportunity for the public to listen and “attend” would be required. ORS 192.670(2); see also Handy v. Lane, supra.

There is no statutory or case law addressing this issue.

While this issue has not been the subject of litigation, the law clearly precludes a public body from using e-mail, Twitter, Facebook or telephone communications to act.

Presumably open

Only if such communications meet the requirements for email, as stated above.

In Harper v. Best, the Waco Court of Appeals left open the possibility of text messages triggering the substantive provisions of the Act. See 493 S.W.3d 105, 117 (Tex. App.—Waco 2016, pet. granted). The messages supplied as evidence in Harper showed conversations relating to official business between three board members.  Id. at 117. One message also contained a reference to a fourth member, and four members would have constituted a quorum of that particular body. Id.  “Assuming without deciding that the reference established a ‘walking quorum,’” the court nonetheless found that no “deliberation” had occurred to trigger the Act, because “[n]othing was presented to show that an exchange occurred [with the fourth board member] about an issue within the jurisdiction of the board or any public business.” Id.

 

Text messages may qualify as an “electronic meeting” that is “convened or conducted by means of a conference using electronic communications.” See Utah Code § 52-4-103(4)-(5).

The Open Meeting Law excludes from the definition of meeting “any communication, including in person or through e-mail, telephone, or teleconferencing, between members of a public body for the purpose of scheduling a meeting, organizing an agenda, or distributing materials to discuss at a meeting, provided that: (i) no other business of the public body is discussed or conducted; and (ii) such a communication that results in written or recorded information shall be available for inspection and copying under the Public Records Act.”  1 V.S.A. § 310(3)(B).

“No meeting shall be conducted through telephonic, video, electronic or other electronic communication means where the members are not physically assembled to discuss or transact public business, except as provided in § 2.2–3708.2 or as may be specifically provided in Title 54.1 for the summary suspension of professional licenses.” Va. Code Ann. § 2.2-3707.B.  All public bodies may conduct any meeting wherein the public business is discussed or transacted through electronic communication means under certain circumstances and if certain procedures are followed. Va. Code Ann. § 2.2-3708.2.A.  “Electronic communication” means the use of technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities to transmit or receive information. Va. Code Ann. § 2.2-3701.  Except in emergencies, a quorum of the public body’s members must be physically assembled at a single location.  See the Act for additional circumstances and procedures for meetings by electronic communication of regional public bodies and state public bodies. Va. Code Ann. § 2.2-3708.2.B. and D.

There is no authority addressing this issue.

There have been no reported meetings conducted using text messaging.

Wisconsin has not addressed this issue.