Alaska has entered the next technological frontier in the nationwide debate over what is and isn’t public information. The nonpartisan legislative legal services agency wrote an opinion on Aug. 27 that text messages sent by government employees are public record under state law. However, Gov. Sean Parnell’s office disagrees.
Dan Wayne, a lawyer with legal services, said the Alaska Public Records Act dictates “text messages are public records in they are developed or received by a public agency (or private contractor for a public agency) and are preserved.”
Wayne based his opinion in part on a 2008 opinion by then-Alaska Attorney General Talis Colberg. When Colberg was asked about the confidentiality of personal information on personal cell phones and personal digital assistants (PDA), he advised that personal information is protected. But he said state business done on personal devices qualifies as a public record unless the law explicitly says otherwise.
Now the governor’s office is rejecting that finding. Parnell spokeswoman Sharon Leighow said text messages are “transitory and the administration does not consider text messages public records.”
Not retaining texts
Consequently, she said the state will not begin preserving text messages. She said the governor’s office is not bound by the legal decisions of the legislative affairs lawyer. Only the state Department of Law has that power, she contended. Legal Services, a branch of the Legislative Affairs Agency, provides legal research and advice for legislators, as well as contract review, session law production and statute revision.
Leighow said that Parnell has consulted the Department of Law on the issue, but she declined to provide details about that consultation.
Senate Judiciary Committee Chairman Hollis French, D-Anchorage, asked for the opinion from legislative legal services. French thought the opinion was straightforward, but said it's not unheard of for the state to disagree with the service's findings.
“It's not like (the legislative affairs opinion) laid down the law forever,” he said.
French did not rule out introducing legislation to include text messages as public record during the next legislative session. “It will sort of depend on how it all shakes out,” he said. “It depends if the governor's office decides to change course.”
'Counter to open government'
Last month, the Anchorage Daily News reported that staffers in Parnell's office were instructed to use text messages instead of email to communicate about sensitive issues in order to circumvent public records requests. Leighow denied that practice.
Mark Caramanica, freedom of information director at the Virginia-based Reporters Committee for Freedom of the Press, said that if it’s true that Parnell’s administration is texting in order to avoid public information laws, such a practice would be “disturbing.” It “runs counter to the ethos of open government,” he said.
Parnell has plenty of experience with open government and public disclosure.
He was former Gov. Sarah Palin’s lieutenant governor and was handed her job after Palin abruptly resigned in mid 2009. He successfully ran for governor in 2010. As Palin watchers may recall, state government was flooded with public records requests from the media after U.S. Sen. John McCain picked her as his vice presidential running mate in 2008.
The Palin administration was not quick in fulfilling those requests, though eventually most of the emails she sent and received as governor were released. Many of them, however, were highly redacted, and many of those redactions happened after she left office and Parnell took over.
The emails that Parnell sent while serving in the Palin administration were especially redacted.
Alaska law makes it a misdemeanor to knowingly suppress or destroy a message or other item that would be covered by the Public Records Act.
Alaska is not alone in grappling the texting issue. Courts across the country increasingly are finding that texts are public records. In Texas a state judge ordered the city of Dallas to turn over emails and text messages, saying the information was subject to the Texas Public Information Act. Florida, with some of the broadest sunshine laws in the nation, considers texts to be public if they pertain to state business.