I gotta be missing something. Last week, the Badger Herald reported that the Mayor and Alder Zach Brandon want to make it so that text messages and instant messages/chats are not subject to open records laws. Their justification seems to be that the records are not “permanent” and not easy to capture. I haven’t seen the proposal yet and I hesitate to put too much trust in the student paper to get the facts correct, so I talked to Bill Lueders to find out what was going on. And what I heard was more than a little disturbing. It sounds like a HUGE loophole is being blown in to the open records law based on FORM not SUBSTANCE. Why would we do that?
Now, I might be a little more anal about this than other elected officials, but I have text messages saved on my phone that are over a year old. I save them because I consider them a record about substance that could be subject to open records laws. And, my chats on gmail are all saved. How are these not “permanent records” and why should they be exempt from open records since they seem to be the same as emails to me?
I didn’t save all my text messages, only the ones that seemed like they were relevant to being an elected official, so the “i’m here, where are you?” and “i’m running late” and “what’s for dinner?” type text messages are deleted. However, I saved the following, the first one was from 2006:
Zach Brandon (10/5 10:59 am): The lack of city Economic Development is my fault? That’s precious. I guess the truce is over. Fine with me, but don’t go running to the Mayor is time.
Me (10/5 12:18 pm): Always the victim aren’t you . . . I didn’t even mention your name . .. geeesh . . .******
Me (2/7 10:09 am): Would you have voted to put housing in with ecd and make it its own dept?
Zach Brandon (2/7 6:08 pm): Probably… Devil is in the detail.
Me (2/7 6:09 pm): always******
Zach Brandon (10/24 7:51 am): Have you talked to verveer and satya RE: splitting the econ dev/comm dev position?
******
Me (11/9 10:36 am): I have to cuts to the budget without seconds . . . . Interested? Please call.
Zach Brandon (11/9 11:16 am): Stuck in a meeting… What’s up?
Me (11/9 11:18 am): never mind . . . Got it covered . . . Was going to ask you to sponsor some cuts that I didn’t have a second for . . . But I got em.
Zach Brandon (11/9 11:30 am): Ok. Sorry. Let me know what they are.******
Me (11/27 5:01 pm): So who wants to be on this committee?
Zach Brandon (11/27 5:02 pm): Me and you.. LOL
Me (11/27 5:02 pm): 🙂 and who else?
Zach Brandon (11/27 5:10 pm): Don’t really know… Guessing: me, you, ms, src, mc, mv(???)…
Shouldn’t most/all of these be subject to open records laws? You can do alot by chat and text messages that should be open to the public and exempting these types of communications seems to be leaving a big gaping hole in the law. If this ordinance passed, why bother with email if you can text or chat? Seems to me, that is not something we should be encouraging. I’m even more concerned after re-reading the Attorney General’s guidance (page 35 & 36) on these issues, and confirming that it is the CONTENT that makes something a record, not the FORM:
X. Electronic Records
A. Introduction: General principles apply to records in electronic format, but unique or unresolved problems relating to storage, retention, and access abound.
1. The public records law defines the term “record” broadly to include “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. § 19.32(2). See Section IV.A., above.
2. Because the content or substance of information contained in a document determines whether it is a “record” or not, id., information concerning public access set forth in the remainder of this outline generally applies. However, many questions unique to electronic records have not yet been addressed by the public records statute itself, by published court decisions, or by opinions
of the Attorney General.B. Is electronically stored information a “record” within the meaning of the public records law?
1. Generally, yes: so long as recorded information is created or kept in connection with official business, Youmans, 28 Wis. 2d at 679, the substance, not the format, controls whether it is a record or not.
a. Examples of electronic records within the Wis. Stat. § 19.32(2) definition can include word processing documents, database files, e-mail correspondence, web-based information, PowerPoint presentations, and audio and video recordings, although access may be restricted pursuant to statutory or court-recognized exceptions, see Section VIII., above.
b. Wisconsin Stat. § 16.61, which governs retention, preservation, and disposition of state public records, includes “electronically formatted documents” in its definition of public records.
Like I said, what am I missing? If a record can be kept, why not keep it? Just because it can be deleted, should we? Or shouldn’t we be encouraging people to keep those records instead of destroying them?
Don’t get me wrong, we need to discuss these issues and address what I see a many problems with open records, but to me the bigger issue is, shouldn’t the City be providing us a way to store these records and back up the records on our laptops?
