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Technology leaps beyond Florida public records laws

President Barack Obama isn't the only government employee addicted to his BlackBerry.

Communication gadgets are becoming increasingly pervasive in daily government operations, from cell phones to personal computers to handheld devices.

But Sunshine Law advocates say Florida's open government laws have failed to keep pace. They worry these new devices could be creating a troubling black hole of public records.

"It's a problem," said Adria Harper, director of First Amendment Foundation in Tallahassee. "We just have to hope that our public officials are following the Sunshine Law and not trying to evade it."

State law requires that any records made in connection with official business be saved for public inspection. But it doesn't address newer technologies, including text messages, personal e-mail accounts or instant messages. Government workers say the very nature of these mediums make them nearly impossible to monitor or capture.

The state is only beginning to address these issues.

Gov. Charlie Crist's Commission on Open Government Reform released a report last month that recommended all agencies adopt policies and procedures to ensure public records created on personal computers are disclosed and retained according to law.

The nine-member commission also recommended "all agencies adopt policies that prohibit the use of text and instant messaging technologies during public meetings and/or hearings." This would prevent a government body from, say, conducting a private policy debate before a public vote.

The commission determined exchanges such as text messages and other "such messages which are transitory in nature, are analogous to the spoken word and the public records law most likely does not apply," according to the report.

Officials from the state Attorney General's office, however, say using text messages to skirt public record rules violates the law's spirit.

But because the ability to retain text messages varies so widely between cellular service providers, it is unlikely the state would be able to obtain the evidence necessary to prosecute.

"If you don't have evidence, you can't convict," said Alexis Lambert, Sunshine Law attorney for the Attorney General's Office.

AT&T, for example, removes text messages from its system once they are delivered to the intended wireless device. Even with a subpoena, the records cannot be retrieved, said spokeswoman Kelly Starling.

No easy solutions

Government officials in the Tampa Bay area say there is little that can be done to ensure employees abide by the Sunshine Law other than to discourage certain technologies.

"We try to manage what we can control," said Muslim Gadiwalla, chief information officer for the city of St. Petersburg. "This whole area is fairly new. Five years ago no one thought about any of this."

The city removed text messaging capabilities from most city phones in October after an employee racked up excessive charges, Gadiwalla said.

Pasco County doesn't provide cell phones to its employees, and text messages are disabled on all county BlackBerry accounts. But governments can't keep tabs on what employees do with their personal communications devices.

"If there is any texting that goes on with their own private phones, you would have to think that is only for their private use and it's not county business," said county spokesman Eric Keaton. "The county does not see that as something that needs to be monitored."

Others governments have embraced text messages despite the medium's ephemeral nature.

In Tampa, employees use them to stay in touch.

"I think we are more texting each other to say, 'Hey I'm at this address, I need this thing to do this work,' like, 'I'm a water person and I need an 8-inch pipe,' " said James Buckner, the city's chief information officer. "I like to think that's what it all is, but I really don't know."

Bucnker said Tampa automatically archives all employee e-mails and department directors must approve any new cell phone lines.

Impenetrable privacy

The city, however, can't capture communication between employees who log onto public sites such as Gmail, Facebook or AOL Instant Messenger to chat and there are no records of text messages sent to or from employee BlackBerry accounts.

"It's no different than voice communication. We are sitting here talking to each other on the telephone and that's not being recorded," said Buckner. "There is just going to be an ongoing challenge to be able to capture all government communication and I don't know if we are ever going to be able to get there."

Government officials also allow employees to self select which of their records are personal or public.

For example, when the Times requested to review text messages sent by St. Petersburg's lobbyist — one of a handful of city employees who still have text messaging service — the city said her 865 text messages were private, and therefore not public record. She reimbursed the city for at least $113 in charges.

Cristina Silva can be reached at (727) 893-8846 or csilva@sptimes.com.

Technology leaps beyond Florida public records laws 02/16/09 [Last modified: Tuesday, February 17, 2009 3:50pm]
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