A state secret or a secret from the state: technology as an obstacle to the public's right to know
COG LOGO
Events have rapidly unfolded since we first commented on a serious threat to open government in the state of Missouri. The threat is a notable one for Kentuckians because it could play out in our own backyard.
The Kansas City Star reported on December 7 that Missouri’s governor – and his staff – had downloaded the app Confide to their personal cellphones. The app “deletes messages and prevents recipients from saving, forwarding, printing or taking screenshots of messages.” The app was likened to the Mission Impossible tape recorder that instantly burst into flames after delivering instructions to the agents during the opening of the sixties’ television series.
Within days of the report, there were calls for an investigation by the Missouri attorney general into possible violations of the state’s sunshine law and records management laws.
Subsequent requests to the Missouri governor for records relating to the use of Confide in his office met with delay and evasion. When at last the governor’s office responded, his staff indirectly acknowledged use of the app but denied a request for documents showing the date on which the governor or his staff downloaded it or a similar app.
In support, the Missouri governor cited that state’s equivalent of Kentucky’s open records homeland security exception, prompting critics to declare that the requested information – namely, the date or dates on which the app was installed — “is not a state secret, [i]t’s a secret from the state.”
Under either states’ law, and on these facts, the invocation of statutes aimed a thwarting terrorism to support nondisclosure strains credulity.
The issue is now in the courts in a case alleging violation of the Missouri sunshine law.
Opponents of the governor’s use of Confide argue that the “use of automatic communications destroying software by elected officials and government employees is illegal and constitutes an ongoing conspiracy to violate” the state sunshine and records management laws, “not to mention a significant affront to the open government and democratic traditions of Missouri and the United States.”
Meanwhile, criticism has emerged concerning the governor’s use of his “personal” Facebook and Twitter accounts to, for example, conduct a meeting from his office in the Capitol to discuss his tax cut plan with constituents.
In an about-face, the Missouri attorney general determined that the practice does not violate the state’s Sunshine Law absent evidence indicating that the account is being used to transact public business. This begs the question: just how narrowly does the attorney general define the term “public business?”
To his credit, the Missouri attorney general has proposed changes to the state’s laws aimed at, among other things, assigning penalties for violation of records management and retention laws of up to a year in prison, up to a $2,000 fine or both.
His efforts coincide with a bill introduced in the current Missouri legislative session that prohibits the use of software like Confide that is designed to automatically delete messages and a bill that amends the definition of public record to include social media pages so that the information contained in such pages is subject to sunshine law requests and clarifies that electronic mail, text messaging, direct or private messaging through social media accounts or other applications or platforms are, under certain circumstances, public records and must be preserved for the purpose of sunshine law requests.
Why focus on threats to the public’s right to know in Missouri under that state’s sunshine law?
It is because the same threats confront Kentucky under our open records and records management laws.
These laws were last substantially amended in 1994. In that year, the General Assembly recognized “an essential relationship between the intent of [Chapter 61 of the Kentucky Revised Statutes, dealing with open records] and [Chapter 171] dealing with the management of public records, . . . and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes.”
The Kentucky Department for Libraries and Archives – which is responsible for implementing Chapter 171 by establishing retention schedules for records of all public agencies — has been proactive in capturing all records in the schedules, based on content rather than format or location, declaring that public officials and employees “are responsible for maintaining the integrity of records whether those records are stored electronically or in hard copy. Information must be accessible to the appropriate parties until all of the legal, fiscal, and administrative retention periods have been met, regardless of the medium.”
The Kentucky Attorney General has been anything but proactive, issuing open records decision in 2015 and again in 2016 ill-advisedly declaring that communications between public officials and employees concerning public business conducted on private devices are not public records.
In so doing, the Attorney General “ignored the expansive definition of the term ‘public record’ and years of precedent that had guided the office’s interpretation of the law recognizing that ‘[i]n the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record.’” An analysis of those open records decision can be found here.
Given the dated language of our Open Records Law, and the Kentucky attorney general’s past failure to effectively apply the law to emerging technologies or to seize the initiative in proposing legislation to address the widening gap between technology and the law, Kentucky will soon – if it does not already — face similar challenges to those now confronting Missouri.
Unless the Attorney General is prepared to reverse his position on this and similar issues, or an appellate court points out the error in his analysis, legislative action — such as that proposed in the Bluegrass Institute’s report, “Shining the Light on Kentucky’s Sunshine Laws” — represents the best, and perhaps the only, solution.
–Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government.