d. Instant messaging

Use of electronic communication e-mail to circumvent the requirement of open government is a violation of the Alabama Open Meetings Act. Ala. Code § 36-25A-1 ("[E]lectronic communications shall not be utilized to circumvent any of the provisions of this chapter.").

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.

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

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.

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

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.

Not addressed by the Act.

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.

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

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

There is no statutory or case law addressing this issue.

See above.

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.

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.

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

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.

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.

There is a new law, effective July 30, 2021, that expressly prohibits “the conducting of public proceedings by text-only means, including but not limited to e-mail, text messages, and chat functions.”  1 M.R.S. §403-B (2021) (emphasis added).

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.

Instant 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).

The definition of public meeting includes meeting conducted by communication equipment. Mo.Rev.Stat. § 610.010(5). If a public body plans to meet by internet chat it shall post a notice of the meeting on its website in addition to its principal office and shall notify the public how to access that meeting. Mo.Rev.Stat. § 610.020.1.

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.

There is no law on point.

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.

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

Any gathering by means of communication equipment, which satisfies the other requirements of N.J.S.A. 10:4-8b constitutes a “meeting” under OPMA.

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 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.

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 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 also Handy v. Lane, supra.

There is no statutory or case law addressing this issue.

See above.

Presumably open

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

Not specifically addressed.

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).

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).

Physical presence is required for all non-electronic meetings.  The statute governing electronic meetings provides that the voices of remote participants must be heard by the public, eliminating by implication the use of instant messaging for meetings.

There is no authority addressing this issue.

There have been no reported meetings conducted via instant messaging.

Wisconsin has not addressed this issue.