Records of government business belong to the public even if they are created, received or stored on an official's private smart phone or laptop, according to an Oklahoma AG opinion released Thursday.
"To conclude otherwise would allow public officials and employees to circumvent the open records laws simply by using privately owned personal electronic communication devices to conduct public business," the opinion said.
The opinion also prohibits public officials and employees from altering or destroying public records on their private communication devices unlessallowed to do under the state Records Management Act.
"E-mails, text messages and other electronic communications made or received in connection with the transaction of public business, the expenditure of public funds or the administration of public property are subject to the Oklahoma Open Records Act, [its exemptions] and the Records Management Act regardless of whether they are created, received, transmitted or maintained by government officials on publicly or privately owned equipment and communications devices," the opinion concluded.
Unlike in many other states, attorney general opinions in Oklahoma are binding unless overturned by a court.
Opinion 09-12 noted that government officials and employees increasingly use privately owned "computers, laptops, cell phones, PDAs, smart phones, and other personal electronic communication devices in conjunction with their work."
Public access to such electronic communications became an issue in April 2008. OSU student Jenny Redden, for an independent study with me, reported in The Daily O'Collegian that OSU President Burns Hargis and several hundred other university employees conduct the public's business on their smart phones or cell phones.
OSU administrators claimed the related text-messages, e-mails and numbers dialed were secret. They contended that the ownership of the cellular device, not the substance of its related records, should decide whether those records are public.
That policy earned OSU officials the annual Black Hole Award from FOI Oklahoma Inc. in March.
The notion put forth by OSU poses a serious threat to open government because it contains no limiting principle. If a record is secret because it's on the mayor¹s iPhone, then so are documents on the mayor's own laptop even if he's conducting the public's business on it while seated at his office desk.
Courts and attorneys general in other states have rejected the reasoning used by OSU officials, holding that it is the nature of the record created that determines if it is open to the public.
Oklahoma Attorney General Drew Edmondon's office followed suit, saying that nowhere in the Open Records Act "is ownership of equipment mentioned as a factor in determining what is or is not a record."
"We conclude that who owns an electronic communications device has no bearing on whether an electronic communication created or received on that device is a record," the opinion said. "Thus, a communication that meets the definition of a record under the ORA is subject to disclosure regardless of whether it is created or received on a publicly or privately owned personal electronic communication device, unless some provision of law allows it to be kept confidential.
"Nor does the location of the electronic communications equipment matter, whether it is used in a governmental office, in a public official's or employee's home, or somewhere in transit between them," the opinion said.
The opinion also reasoned: "Like the ORA, the RMA makes no distinction between records that exist on publicly owned electronic communication equipment and those on privately owned equipment. Therefore, public officials may not partially or wholly mutilate, destroy, transfer, remove, alter, or otherwise damage or dispose of records on their personal electronic communications devices, except as provided by law."
Read the AG's opinion here.
Jenny's series on open government at OSU can be found at:
Thank you to Drew Edmondson and Assistant Attorney General Debra Schwartz for this written opinion. It will go a long way toward protecting open government in Oklahoma.
Thank you, also, to Susan McVey, director of the Oklahoma Department of Libraries, and Bill Young, the department's public information administrator, for requesting the opinion.
Friday, May 15, 2009
Great news for open government in Oklahoma
From Dr. Joey Senat, Associate Professor at OSU School of Journalism and Broadcasting: