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d. Instant messaging

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  • Alabama

    There is no statutory or case law addressing this issue.

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  • Alaska

    There do not appear to be any cases or authorities addressing instant messaging 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.

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  • Arizona

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

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  • Arkansas

    There is no statutory or case law concerning instant messaging, 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. Public access to such meetings could be gained by logging onto the computer network. Id.

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  • California

    Use of instant 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 jurisdiction of the legislative body” would violate both the Bagley-Keene Act the Brown Act.  See Cal. Gov’t Code § 11122.5(b)(2); Cal. Gov't Code § 54952.2(b).

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  • Colorado

    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).

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  • Connecticut

    There are no reported court decisions on this issue.

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  • Delaware

    Not addressed by the Act.

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  • District of Columbia

    Although the Open Meetings Act does not specifically address meetings conducted by instant messaging, it applies to meetings held by any "means of communication."  D.C. Code Ann. § 2-574(1).  This catch-all category may include instant 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 instant messages are sufficiently analogous to e-mails to come within the statute's exemption for e-mail exchanges.

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  • Florida

    Not addressed. But see section re “Text messages” above.

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  • Georgia

    The Act does not authorize agencies to meet by instant messaging.

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  • Hawaii

    There is no statutory or case law addressing this issue.

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  • Illinois

    The Act explicitly includes instant messaging within the definition of a “meeting.” A meeting is “any gathering, whether in person or … electronic means (such as, without limitation, electronic mail, electronic chat, and instant messaging), or other means of contemporaneous interactive communication, of a majority of a quorum of the members of a public body held for the purpose of discussing public business.” 5 ILCS 120/1.02 (emphasis added). Put differently, an instant message qualifies as a meeting if (1) there is quorum; (2) of a public body; (3) held for the purposes of discussing public business. Id.

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  • Indiana

    The Act does not address instant messaging. But the Indiana Public Counselor Handbook addresses the question of whether email exchanges are meetings, and a similar analysis could apply to instant messaging 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.

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  • Iowa

    Not unless the system would permit "a gathering."

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  • Kansas

    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.

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  • Kentucky

    The Open Meetings Act does not address instant messaging and does not permit meetings to be conducted by instant message. See Ky. Rev. Stat. 61.810(2).

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  • Louisiana

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

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  • Maine

    There are no Maine decisions on whether instant messaging constitutes a meeting, but the purpose of the public meetings law is broad and would prevent 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 instant messaging.

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  • Maryland

    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).

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  • Michigan

    Not addressed by the law.

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  • Minnesota

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

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  • Mississippi

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

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  • Montana

    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 instant messaging.

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  • Nebraska

    There is no law on point.

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  • Nevada

    Instant 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.

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  • New Hampshire

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

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  • New Jersey

    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.

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  • New Mexico

    There is no statutory or case law addressing this issue.

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  • New York

    Not addressed.

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  • North Carolina

    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).

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  • North Dakota

    Simultaneous communication between a quorum of a governing body through instant messaging 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.

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  • Ohio

    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.

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  • Oklahoma

    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.

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  • Oregon

    The statute does not specifically address instant messaging. However, if a quorum of a governing body is instant messaging about a decision or using instant messaging 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 Handy v. Lane, supra.

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  • Rhode Island

    There is no statutory or case law addressing this issue.

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  • Tennessee

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

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  • Texas

    Not specifically addressed.

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  • Utah

    Instant messaging 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).

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  • Vermont

    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).

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  • Virginia

    “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.

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  • Washington

    There is no authority addressing this issue.

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  • West Virginia

    There have been no reported meetings conducted via instant messaging.

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  • Wisconsin

    Wisconsin has not addressed this issue.

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