I recently received an interesting scenario and set of questions from a regular reader that’s worth sharing in generic form.

His question centers on whether communications with a member of the city council, including text messages regarding matters before the council, would be considered public records.

Here’s the scenario he presented.

A new city council member was elected with heavy support from the hotel industry, public employee unions, and developers.

This councilman spends a great deal of time looking down at his phone during meetings and hearings.

During council meetings and committee hearings, the councilman keeps his phone on and appears to be reading instant messages of advice coming from people in the audience or from staffers watching him on live-television.

Some council watchers say the councilman will begin to state something or appear like he is going to state something, then back off after looking down at his phone.

Prominent industry leaders have been observed in the audience texting away during committee meetings or council meetings, then looking up in approval as the councilman makes a statement.

It looks as if modern technology (a smartphone) is being used for instant communications regarding issues before the city council.

Is such behavior ethical? It is legal? Are open meeting laws being violated? Or is this a gray area? Would the text messages be disclosable under Hawaii’s public records law?

The reader then commented:

My take is the following: The public would shocked if an industry leader were to shout from the audience “don’t respond to that, instead, say this”. And the councilman repeated it word for word.

My initial guess is that these kinds of communications would not be considered public records.

First step is to check the applicable statutes, beginning with the Uniform Information Practices Act (Chapter 92F, Hawaii Revised Statutes).

The basic rule: ” All government records are open to public inspection unless access is restricted or closed by law.”

The definition of “government records” appears in Section 92F-3:

“Government record” means information maintained by an agency in written, auditory, visual, electronic, or other physical form.

And here’s the definition of “agency”:

“Agency” means any unit of government in this State, any county, or any combination of counties; department; institution; board; commission; district; council; bureau; office; governing authority; other instrumentality of state or county government; or corporation or other establishment owned, operated, or managed by or on behalf of this State or any county, but does not include the nonadministrative functions of the courts of this State.

This seems to mean that informal communications via text messages to or from a member of the city council would not be considered “government records” unless they were “maintained by an agency”, in this case presumably the city council or city administration. And I recall that there have been some complicated legal dissections of the meaning of the word “maintained” which would have to be taken into account.

So, on first glance, these text messages fall through the cracks of the UIPA.

Then there’s the question of the Sunshine Law regarding open meeting requirements.

Here again, the basic rule is simple: “Every meeting of all boards shall be open to the public and all persons shall be permitted to attend any meeting unless otherwise provided in the constitution or as closed pursuant to sections 92-4 and 92-5….”

The stated intent of the law is to open up “the discussions, deliberations, decisions, and action of governmental agencies.”

This provision is buried down in a section dealing with exceptions to the “open meeting” rule:

No chance meeting, permitted interaction, or electronic communication shall be used to circumvent the spirit or requirements of this part to make a decision or to deliberate toward a decision upon a matter over which the board has supervision, control, jurisdiction, or advisory power.

I take this to mean that if text messages were flying between council members, amounting to secret conversations running parallel to the open meeting, this might under some conditions be construed as violating the sunshine law.

Once again, though, Hawaii’s law doesn’t seem to apply to communications between a member of the council and their staff, advisors, or other private parties, but I’m anxious to hear from others more familiar with how these public interest laws might apply in a situation like this. I wonder if there are rules or laws relating to retention of records that might apply to text messages?

The question of text messages as public records has come up elsewhere.

Here’s an overview from the IT Law Wiki, with references to several court cases, and an entry from the Sunshine Review Blog.

In Florida:

The issue of text messaging — or PIN messages on Blackberry devices — has come to light amid the turmoil surrounding the Public Service Commission. Three PSC staff members were reassigned or put on leave earlier this month because they’d given their PIN numbers to a Florida Power & Light lobbyist. The agency has no policy for capturing the information transmitted via PIN. That’s raised suspicions that the communications sought to circumvent state record-keeping because an alternative, electronic mail, is archived. FPL is currently seeking an extraordinary increase in base rates.

Text messages were also a hot topic recently in Massachusetts, according to a story in the Sun Chronicle.

A March 2009 entry from the Connecticut Freedom of Information Law Blog looks at a court case in Michigan, where text messages were held to be public records, and compares it to Connecticut’s law.

It’s interesting to note the definition of public record in Connecticut, which is much broader than the “maintained by an agency” approach of Hawaii’s law.

“Public records or files” means any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

One impression after starting to look at all this discussion. Hawaii’s laws. both the sunshine law and the UIPA, really need to be updated to cover the new world of social media and public records.