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Capitolbeat to Public Officials: Conduct Public Business in the Public’s View

September 27, 2010

The Capitolbeat Board was unanimous in deciding that the organization should join ten other media companies and organizations on an amicus brief filed recently with the Colorado Supreme Court in the case of Denver Post Co. and Karen Crummy v. Bill Ritter.  The Board immediately recognized the danger posed by an adverse decision from Colorado’s highest court, not only in that state, but throughout the country.   If you read on, I’m sure you’ll agree.

The Post is seeking access to the cell phone records of  Colorado Governor Bill Ritter via the Colorado Open Records Act (“CORA”).  Ritter admits to using his personal cell phone to conduct state business.  The Post originally sought access to his cell phone logs in their entirety; it then narrowed the request to only those records of a non-personal nature made during business hours.  The Governor’s office denied the request, arguing that the records were not government records; it claimed instead that they were records created by a third party independent of the Governor (the Governor, however, conceded that logs of calls made on his state-issued Blackberry are public records).  Unfortunately, the Colorado Court of Appeals agreed with the Governor’s office and upheld the denial of the records.

The Post appealed to the Colorado Supreme Court.  The Reporters Committee decided to file an amicus brief before of the far-reaching implications an adverse decision might have.  The Capitolbeat board quickly agreed that this case is dangerous.  If the Colorado Supreme Court upholds the denial of this CORA Request, you can be sure that every government official in Colorado will start using his or her personal cell phones to conduct business whenever possible.  Though this is just the decision of one State Supreme Court, you could also clearly envision government officials in other states trying this and hoping that their courts reach the same result.  Other organizations that agreed and, therefore, joined the brief, are: the American Society of News Editors, the Associated Press, the Colorado Freedom of Information Council, the Colorado Press Association, the E.W. Scripps Company, Gannett Co., the Newspaper Association of America, the Radio Television Digital News Association, and the Society of Professional Journalists.

The brief, which can be read in its entirety here, makes three main arguments:

1. Allowing a public official to conduct public business on private media defeats the entire purpose of CORA and would lead to further “privatization” of public functions in a way that prevents journalists from performing their watchdog role in society.  The making and receipt of phone calls on a personal phone are actions which unquestionably related to government functions.  Allowing Governor Ritter or any other public official to dodge the disclosure requirements of CORA by selecting which device on which to communicate thwarts the basic underpinning of CORA (or any other public records law), which is the mantra that “the public’s business is the public’s business)”.  Allowing the lower court’s decision to stand would almost certainly see government officials begin to use personal email accounts  for public business as well, meaning virtually every record of a government official’s actions could be hidden from public view.    We are already seeing attempts to circumvent public records laws in this way throughout the country. The brief cites such instances as:

  • The use of a private Email account by North Carolina Governor Mike Easley in intentionally attempting to circumvent the NC record law to hide alleged violations including improper air travel, improper use of vehicles and questionable real state transactions
  • Venice, FL mayor Ed Martin also used his private Email to strategize with candidates in city elections, even though such behavior was specifically prohibited after other city officials had already engaged in the practice.
  • San Jose, CA city council members tried to hide conversations in which lobbyists were directing those city council members how to vote on key development projects by using private Email accounts.
  • An investigation into corruption and fraud in the San Bernandino County (CA) assessor’s office revealed that instant messaging was used to circumvent public records laws.
  • Iowa Governor Chet Culver used his private Email account to conduct most of his state business but voluntarily decided to reveal those Emails, leading FOI expert Charles Davis to note that “When you’re conducting public business, it should be agnostic as to platform”.
  • The problem exists at the federal level, where the Bush Administration used the RNC’s Email system to communicate on government business, a tactic that has continued into the Obama Administration (though obviously on the DNC system).

2.  The magnitude of this problem is troubling because cell phone (and similar) records are standard investigative sources frequently used by journalists to report on government activity.  We all know it:  reviewing cell phone records is one of the best ways to confirm that an official has or has not engaged in particular conduct.  The brief does a great job of compiling examples here as well:

  • The Arizona Republic used cell phone records to show that the Governor’s Deputy Chief of Staff called a former campaign treasurer who was seeking a large government contract.  Multiple phone calls were made immediately after the relevant government decision making body met, resulting in the former campaign treasurer’s firm dropping its bid by $ 400,000 and, eventually, winning the contract.
  • The Fort Myers (FL) News-Press used cell phone records to show that a local Sheriff violated an office policy by associating with convicted felons, despite the fact that he had previously demoted, transferred or filed employees who did the same.
  • The Oakland Tribune uncovered an alleged attempt a political takeover of the local school system by demonstrating that the relevant agency communicated frequently with top politicians, including Oakland Mayor Jerry Brown.
  • Of course, White House visitor logs (a variation on the cell-phone records) showed that Jack Abramoff met with White House officials.
  • Credit card statements have shown how government officials spend their workdays either not working or pursuing illegal activities on behalf of other government employees.
  • The problem threatens to move to the area of “metadata”, data embedded in computer-generated documents that is used by reporters to read between the lines with regard to certain records.  Metadata is technically created by an outside party in the performance of government duties as well.
  • These personal cell phone records clearly fall within the definition of a “public record” under CORA.  This section does parrot the Post’s biggest argument – the strictly, by the books, definition of a public record includes anything made, maintained  kept by a government attorney in his official capacity.

3.  Finally, the brief restates one of the Post‘s main arguments:  these personal cell phone records clearly fall within the definition of a “public record” under CORA.  This section does parrot the Post’s biggest argument – the strictly, by the books, definition of a public record includes anything made, maintained  kept by a government attorney in his official capacity.

I hope you find this case as interesting as I do and agree that this is becoming an increasingly dangerous and difficult problem that must be nipped in the bud.

One Comment leave one →
  1. May 16, 2014 11:35 pm

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