Can public business be 'private' conversation?

March 28, 2013

Inside the First Amendment

By Gene Policinski

The First Amendment protects our free speech from government control, punishment or
interference - but when public officials speak freely through private e-mail
accounts or mobile phones, are they free to ignore freedom of information laws?

On one hand, they are paying from their own funds for those means of communication -
and even public officials have private lives, though less so than before their win
at the ballot box or appointment to public office.

But it would seem that there's nothing really "private" about a conversation about
public policies, or about spending public funds, or making hiring decisions for
public employment.

States are about evenly divided on whether the latter kind of conversations is
covered by FOI or public records laws. A recent Associated Press story, citing data
from the Reporters Committee for Freedom of the Press, noted that 26 states see
private e-mails or other kinds of electronic communications about government
business as public records. Those records generally are to be held open for review
by citizens, and subject to laws and regulations on how long they must be stored and

The most recent battleground over the issue is in California, which had not defined
access to such information.  A state court judge ruled recently that private text
messages, emails and other electronic communications sent and received by San Jose
officials about city affairs are public records.

But that ruling won't address the question for 23 other states where public
officials may well be able to discuss sensitive decisions - major spending proposals
or the hiring of top officials like school superintendents - out of the view of
taxpayers and fellow citizens.

One common tactic used to avoid public scrutiny is to hold a series of calls
involving fewer officials than a majority, or whatever critical number might be
specified in state FOI laws requiring public meetings. The approach may well meet
the letter of the local law, but it avoids its spirit - that citizens be able to
view the entire decision-making process.

Public officials ought to be able to converse individually:  There's no point in
requiring public notices for random hallway meetings or the mundane daily matters
involved in operating public agencies.  And there are some areas - law enforcement,
individual personnel matters or court proceedings - where outright secrecy is

If such "private" cell phone or e-mail exchanges were limited to such necessary
situations, there's no problem. But such conversations also can be used to mask
uncomfortable or politically-sensitive conversations, or worse, to hide fraud, waste
and corruption.

Without access and visibility, the public cannot determine the motive or manner
behind such calls and messages. In an era in which many citizens already are
predisposed to distrust government activity, hidden discussions of public business
just feed that negative situation.

In the end, doing public business in public is a double-positive - it removes
questions about decision-making even as it invites greater citizen interest and
engagement in the process of self-governance.

The right of the people peaceably to assemble, and to petition the government for a
redress of grievances depends in no small degree on having enough information about
public policy and business, in a timely fashion, to intelligently assemble and seek
changes from their elected officials.

In the light of that majestic constitutional exercise between the governed and their
governors, "Who owns that cell phone?" seems a petty and irrelevant question.
Gene Policinski is senior vice president and executive director of the First
Amendment Center. Email him at

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