Balancing Technology and the Law Basics for Local Officials
By Daniel M. Olson, League Assistant Legal Counsel
 
As local elected officials enter into or retake their offices for a new term, there are many things to consider. One relatively new consideration is the use of technological devices such as smart phones, tablets and laptops.
More specifically, elected officials need to consider some significant legal boundaries for using these types of electronic devices that are established by the Wisconsin Open Meetings Law, Wisconsin Public Records Law and due or fair process requirements.
 
The Open Meetings Law
 
The Wisconsin Open Meetings law imposes notice and openness requirements when a governmental body has a meeting. The law defines a “meeting” in relevant part as: “[T]he convening of members of a governmental body for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body.” Wis. Stat. sec. 19.82(2).
 
Can members of a governmental body inadvertently “convene” a meeting electronically by way of their smart phones, tablets and laptops and violate the open meetings law? The simple answer is yes.
 
It is relatively clear that written communications transmitted by electronic means, such as email or instant messaging, may constitute a “convening of members,” depending on how the communication medium is used. The Wisconsin Attorney General has observed that “If the communications closely resemble an in-person discussion, then they may constitute a meeting if they involve enough members to control an action by the body.” Krischan Correspondence, October 3, 2000.
 
Conducting a real time conversation by email or text is a key reason we use them to communicate. When we send a text or email, we expect a quick response, just as we would in an in-person or telephone conversation. The real time nature of emailing and texting is the danger for local officials when using technological devices for these forms of communication.
 
The Attorney General has noted that “it is quite possible that, through the use of electronic mail, a quorum of a governmental body may receive information on a subject within the body’s jurisdiction in an almost real-time basis, just as they would receive it in a physical gathering of the members.” Wisconsin Open Meetings Law: A Compliance Guide, August 2010, p. 8. Similarly, a text message sent to one member of a governmental body may be communicated almost instantaneously to another member of a body, taking on the appearance of a walking quorum and a “convened” meeting of the body.
 
Technological devices can be used to send emails and texts without violating the Open Meetings Law if there is great care taken to minimize content and distribution of the original message. However, the Wisconsin Attorney General has stated that “because of the absence of judicial guidance on the subject, and because electronic mail creates the risk that it will be used to carry on private debate and discussion on matters that belong at public meetings subject to public scrutiny, the Attorney General’s Office strongly discourages the members of every governmental body from using electronic mail to communicate about issues within the body’s realm of authority.” Krischan Correspondence, October 3, 2000; Benson Correspondence, March 12, 2004. The same risk applies to instant messaging. Accordingly, members of governmental bodies should also refrain from using text messaging to discuss governmental business with other members of the body.
 
The Public Records Law
 
The Wisconsin Public Records Law establishes a number of requirements related to government records. Notably, the law contains a very broad definition of record, which states:
 
Any material on which written, drawn, printed, spoken, visual, or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority.
 
Wis. Stat. sec. 19.32(2).
 
So, a text message from one alderperson to another regarding a proposed ordinance is a record. An email from a planning committee member to another member about the demeanor of a fellow member is a record. A text message from a trustee to the village fire chief about firefighter training is a record.
 
A number of issues are presented when text messages and emails achieve status as a “record” under the Wisconsin Public Records Law. However, there are three of particular importance to local officials.
 
First, the law requires records to be preserved. This means a text message or email that qualifies as a “record” cannot be casually deleted along with other texts or emails. Instead, they must be kept and maintained in accordance with applicable rules.
 
Second, the law provides the public with the right to access records. Importantly, this right to access text or email records does not depend on whether the electronic device where it exists is privately or publicly owned. Consequently, emails or texts generated or received on an officials’ personal phone, computer, tablet or laptop are subject to public access under the law.
 
Third, given the first and second issues, some villages and cities provide local officials with phones, tablets, and/or laptops to use, which makes recordkeeping and public access more manageable. However, as government issued property, local officials need to be aware of the restrictions on their use. Using public resources for either personal or political purposes may violate the law or a specific local use policy.
 
Fair Process
 
Sometimes local public hearings involve complex issues. It may be tempting to research the issue on the internet or consult someone via email or texting during the hearing. However, this activity may be contrary to due or fair process requirements.
 
Some types of hearings conducted by local officials require due or fair process. These hearings typically allow one party to present their evidence and a second party to present theirs. The decision is then made based on the evidence presented. However, an official might decide to contact a third party by email or text or do her own fact finding by surfing the web, and then use this information to make her decision. This activity could be deemed unfair and a violation of due or fair process rules.
 
A fundamental element of due or fair process is to have the decisionmaker(s) actually pay attention to the arguments being made. A hearing could hardly be deemed fair if the decisionmaker plugged his ears and turned his back during the proceeding. Likewise, a court might conclude that a decisionmaker who was paying more attention to his text messages and emails during a hearing failed to provide due or fair process and overturn the decision.
 
Conclusion
 
New technologies are often helpful. Smart phones, tablets and laptops have certainly improved our ability to access information and communicate with each other by text or email. However, as this comment highlights, local officials need to understand that these new devices and the forms of communication they support raise a number of important issues for them to consider before they hit the “search” or “send” button.
 
Governing Bodies 394
Public Records 148