Copyright 2005, San Bernardino County Sun

Technology subject to public-records laws
County: Messaging may make violations easier to discover

By Megan Blaney

(SAN BERNARDINO, May 30) -- The laws governing public records and public meetings also include BlackBerry messages and phone calls.

Public records refer to all communications related to public business and are pertinent to all records, regardless of the technology used, said Nathan Barankin, spokesman for Attorney General Bill Lockyer's office.

"They are public record. They're not exempt just because they are e-mail,' Barankin said.

San Bernardino County's policy governing e-mail mandates that all business-related e-mails that are formal in nature and have "lasting value to the county' be printed and saved as an official public record document.

Once printed, the e-mails must be deleted.

"Counties must be careful to have a policy and follow it. Any record that belongs to the government and is in its possession is subject to the public records law,' said Peter Scheer, executive director of the California First Amendment Coalition, a nonprofit group advocating for open government.

Scheer said officials must also not allow the new technology to violate another section of the the state's open-meeting law, the Brown Act, involving serial meetings.

Serial meetings involve a portion of the legislative body, but eventually involve a majority. For example, member No. 1 contacts member No. 2, then member No. 2 contacts member No. 3, member No. 3 contacts member No. 4 and so on until a quorum and collective concurrence has been established.

The following two examples also violate the Brown Act: A local agency attorney telephones or e-mails members of a planning agency one by one for a decision on a proposed action. Or a chief executive briefs supervisors prior to a formal meeting and, in the process, reveals information about the members' respective views.

A BlackBerry device would not make it easier to violate one of these Brown Act rules, but might make it easier to trace, said David Wert, San Bernardino County spokesman.

"Those in the county who are affected by the Brown Act are aware of what constitutes a serial violation of the open-meeting law, so just as we trust them not to violate the law using old technology, we have to trust them not to violate the law using new technology,' Wert said.

"Of course, BlackBerry communications can leave a record on the county's e-mail system, so in that sense, it can be argued that violating the Brown Act via BlackBerry is more risky than violating it the old-fashioned way, i.e. simply having a secret meeting."