To Text or Not to Text

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    NEWSLETTERS

    TK
    clipart.com
    Should officials be allowed to text during a government meeting?

    Open government in the heart of Silicon Valley is starting to mean turn off, tune out, power down.
         
    When the San Jose City Council meets just miles from the Apple and Google campuses, its members shut down all portable electronic devices, as though they were in a theater. If they're on and they get a text or e-mail from a lobbyist or anyone discussing city business, they must say so right then and there.

    Experts say San Jose's policy is a model for open government in the digital age. Other cities and state legislatures are adopting their own rules at a time when officials are increasingly fielding requests for lawmakers' cellphone records, e-mails and text messages.

    "Essentially what we've said is a public record is a public record," San Jose Mayor Chuck Reed said, "no matter where it exists."

    More than half of the legislative chambers in the states restrict the use of electronic devices in some form, including dozens that prohibit the use of cell phones on the floor, according to the National Council of State Legislatures.

    In California, the new Assembly Speaker, John Perez, D-Los Angeles, is trying to impose a ban on texting from lobbyists to lawmakers on the floor or in committee. The state Senate already requests that its members not use personal cell phones and electronic devices during meetings.

    San Francisco Mayor Gavin Newsom says he is considering banning texting and e-mailing between lobbyists and lawmakers during City Hall meetings.

    But advocates for open and accountable government say that banning texting or e-mailing during meetings leaves huge loopholes since lobbyists and lawmakers could text or e-mail each other just before or after a meeting.

    The better policy, they say, is one like San Jose's, which requires officials to disclose all discussions of public business, including those conducted on personal cell phones or laptops.
         
    "A ban is better than nothing but not much," said Peter Scheer, executive director of the First Amendment Coalition, a San Rafael, Calif.-based non-profit that advocates for open and accountable government.

    "It's more a cosmetic political gesture aimed at avoiding embarrassment since so many public officials are actually receiving messages during a hearing or a voting session that tells them how to vote," Scheer said. "Disclosure is the better idea."

    San Jose's policy is a prototype, he said. But the law did not arrive there easily.

    It was enacted months after a series of articles in the San Jose Mercury News last summer called attention to how text messaging between council members and lobbyists skirted the city's promises of open-government reform.

    The law also took a lawsuit from an environmental group, which cited the California Public Records Act in suing the mayor and council for refusing to produce e-mails, text messages and other electronic communications about city business from officials' personal cell phones or other devices.

    Mayor Reed said discussion of the new policy began a year ago, after a City Council member received a text from a lobbyist during a voting session that was meant for another council member. The text, which the member made public, appeared to be directions on how to vote on the lobbyist's issue.

    Under the new policy and depending on the severity of the breach, the mayor said, violators could face public exposure or possible censure.

    In Florida, with one of the most far-reaching open records laws in the country, a state commission recommended a number of new policies in a January 2009 report, including a ban on texting during public meetings to eliminate external communications with parties not speaking publicly at the meetings.

    To date, however, very few cities in Florida have adopted the recommendations, said Barbara Peterson, chair of the commission and president of the First Amendment Foundation, an open government advocacy group.

    "Cities have been all over the map," Peterson said. "We're not really dealing with these issues on a statewide basis."

    Peterson and other First Amendment advocates say that no matter what laws are enacted regarding texting, e-mailing and other electronic communication, anyone determined not to comply can probably find a way to skirt the law without being discovered.

    Texts are easy to delete. Those that can be retrieved through a cell phone provider are only available for a short time, a few days for the most part. And it can take longer than a few days to obtain a subpoena for a text record.

    So bans on texting largely rely on the honor system. "We've got a ways to go," Peterson said.