Open records laws face new challenges in Digital Age



When the Open Records Act was crafted, no one had an inkling of the speed and stealth communications would take with the coming of the World Wide Web, cell phones, emails and texts and the mischief new technology has unleashed.

Decision-making by elected officials is largely supposed to be conducted in public and entirely in the open. But as many local communities are discovering, it is hard to shine the light of discovery into the crevices created by phones and computers.

What once filled rafts of file cabinets can now be contained on one USB memory stick. And public meetings lose their cachet of openness when city council members can receive instructions and advice from clandestine sources emanating perhaps in council chambers or perhaps miles away.

And who is to know what sources or motives are at work?

Last week the Forsyth Ethics Panel found Forsyth County Commissioner Cindy Jones Mills had violated the Open Records Act by deleting texts she had received relating to matters before the county. The county Ethics Board could have removed her from office had the members found her deletions rose to an egregious level. As it was, they let her off with a reprimand.

But this was by no means an isolated case. At Milton City Council meetings it became public that council members were receiving texts providing information about a rezoning in progress. At last report, Milton elected officials have their phones out but untouched during meetings.

It seems some elected officials desire to be in continuous contact should a home emergency arise.

It makes one wonder at the courage of councils long past who braved the unknown and spent whole evenings conducting city business in the dark whether officials’ houses would still be standing when they returned home.

In Roswell there was a case of one councilman holding his phone as he spoke, waiting for the texts to keep prompting the points the puppeteers wanted Pinocchio to make.

Perhaps these actions did not arise to the proverbial hill of beans, but certainly it points to a danger if left unchecked.

Johns Creek City Council streams its meetings live, and it is perfectly plausible for persons unknown to weigh in on say a zoning matter without going through the normal practice of filling out a speaker’s card much less making a case before all in attendance.

An old-school developer once explained to me why he backed away from a particularly convoluted real estate project. It “just don’t pass the smell test,” he said.

Neither does elected officials receiving texts or other electronic remote information or instructions while hearing zoning or policy debates. Open meetings means everything is out in the open. We are not innocents here.

Rene Guidry, the Forsyth County citizen who filed the ethics complaint against Commissioner Mills alleged that Mills violated the Open Records Act “on multiple occasions by deleting text messages between her and developers with pending zoning issues, other county commissioners and zoning attorneys.”

These are serious charges, and all the more serious because they call into question the integrity of the process of open government. Citizen Guidry summed up the case this way:

“It’s about accountability,” Guidry said after the ethics hearing. “Why do we waste our hours coming to meetings? It’s to hold the government accountable.”

I can but add my own “Amen,” to that.

And for those elected officials who feel they cannot surrender an evening out of touch with kith and kin, I suggest they line up their phones with the security officer on duty. I am sure he can bring instant attention should any “trouble at home” arise during a meeting.

Meanwhile, we the electorate still must sit with our phones silenced and left with our private fears until the conclusion of the public’s business.

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