By Douglas E. Lee, Special to the First Amendment Center Online
September 13, 2002
Considering that both the Continental Congress and the Constitutional Convention met in secret, our country’s strong commitment to open public meetings is somewhat surprising. It’s also relatively new.
Although a few states began enacting open-meetings laws as early as 1898, most states did not guarantee access to public meetings until the mid-20th century. The federal government waited even longer, as meetings of congressional committees and executive agencies were not routinely open until the mid-1970s. Today, however, the 50 states, the District of Columbia and the federal government all have adopted so-called “sunshine laws,” which reflect the belief, as expressed by Woodrow Wilson, that “light is the only thing that can sweeten our political atmosphere and open to view the innermost chambers of government.”
Open meetings are not required by the First Amendment. As a result, no minimum standard of openness exists. The federal and state sunshine laws therefore vary significantly in scope, detail and enforcement. The First Amendment-oriented thinking behind open-meetings laws is that a free press must have access to government proceedings in order to do its job of informing the people.
Generally, open-meetings laws require public bodies to deliberate and act in public view. “Public body” usually is defined to include most legislative, executive and administrative bodies of the government and its political subdivisions. A “meeting” covered by the act often is any gathering of a majority of a quorum of the members of the public body at which public business is discussed. As so defined, an act can apply to an informal discussion among (or, increasingly, a sharing of e-mails by) a relatively small number of board or commission members.
Open-meetings acts typically require public bodies to provide the public and the media with schedules of regular meetings and prior notice of any special meetings. The public bodies also must keep written minutes of all meetings.
The strength of a sunshine law depends on its exceptions. Every open-meetings act allows public bodies to close meetings or portions of meetings in some circumstances. School boards, for example, typically can close meetings to discuss student disciplinary cases. Most public bodies also can close meetings to discuss pending litigation, the acquisition of real estate, collective bargaining and individual personnel issues. Minutes from these closed sessions, however, generally must be kept and made public if and when the matter discussed is no longer confidential.
Courts across the country have held that public bodies must limit executive sessions to only those matters permitted. Under a circuit court case,Philadelphia Newspapers, Inc. v. Nuclear Regulatory Commission (1984), for example, federal agencies subject to the Government in Sunshine Act, 5 U.S.C. Section 552b, must attempt to segregate non-exempt portions of meetings from exempt portions and close only those portions of meetings involving exempt topics.
Most states provide that the open-meetings requirement can be enforced through civil actions and/or criminal prosecutions. Criminal penalties usually are limited to fines. Civil sanctions, on the other hand, can include an order to provide public access to minutes of a closed meeting; or an order declaring an action taken at an improperly closed meeting null and void. In order to encourage citizen enforcement of open meetings acts, some states allow members of the public to enforce the acts by filing administrative complaints.
Open-meetings laws, or sunshine laws, are designed to ensure public participation in political policymaking. They exist to shine light on the actions of government officials, some of whom seem to prefer shrouds of secrecy and curtains of closure.
For example, let’s say five members of a school board start sending e-mails to one another about a contentious issue. The members send numerous messages back and forth and decide how they are going to vote at an upcoming meeting. For the purposes of some state open-meetings laws, these officials have likely deliberated toward a decision and engaged in a “meeting.”
But, what if only two members of a seven-member board conduct public business through e-mail? Two members often do not constitute a quorum, or necessary number or majority, of the government board, so that activity might not add up to an official meeting. However, every state has its own open-meetings law, so the issues vary state-by-state. In Florida, a meeting can be constituted by two members communicating with each other.
These issues raise thorny problems for public-access advocates who say that at least some public officials are using electronic communication to evade the strictures of open-meetings laws. “It is a growing problem, and it is a problem which many states and municipalities are only beginning to think about in any systemic way,” says Charles N. Davis, executive director of the Freedom of Information Center at the University of Missouri.
“There are many instances out there where public officials are using personal e-mail for public business, mixing and mingling their e-mails with private and public business and using three-way and four-way e-mail conversations to hold quasi-public meetings,” Davis said.
Paul McMasters, former First Amendment ombudsman for the Freedom Forum and an open-government expert, agreed the problem is a growing one. “I would say it is on the list of the top five problems facing open-government advocates as well as public officials,” he said.
“What is evolving as a growing concern are virtual meetings,” McMasters said. “Obviously, e-mail is at the front of that. But it also involves specialized mail lists, chat rooms (which are often closed discussion groups), instant messaging and video conferencing — all of which if abused can really trample on the public’s right to know both from a public-meetings and a public-records viewpoint.”
The problem, simply stated, is that many state laws do not adequately address electronic communications in the open-meeting context. The states’ laws were written to cover traditional communications, not for the age of the Internet. Many states simply have not addressed, through legislation or case law, whether e-mail by public officials can constitute a meeting triggering the open-meetings statute.
Furthermore, more states have addressed e-mail in the public-records context as opposed to the public-meetings context. “We are still looking for good public policy on how to handle e-mail as a meeting,” says F. Landon, executive director of the Virginia Coalition for Open Government. “Most states are in far better shape with their open-government laws governing electronic records than they are with e-meetings.”
“What we are staring at is a bunch of laws in an age of manila folders and conference rooms when we live in an age of televideo conferencing and instant chat,” says Davis. “Every day there is seemingly a new technological development to allow government officials to circumvent the public-meetings law.”
In the courts
The problems caused by government officials’ use of e-mail in the context of open-meetings laws is beginning to surface in the courts. In Wood v. Battle Ground School District, a Washington appeals court determined in 2001 that there were questions as to whether e-mails sent among school board members and members-elect triggered the meeting requirement of the state open-meetings law. The court wrote that “the exchange of e-mails can constitute a ‘meeting’ ” — but added that “the mere use or passive receipt of e-mail does not automatically constitute a ‘meeting.’ ”
In the Washington case, the appeals court noted that there was at least some evidence that the e-mails involved more than passive receipt: “And the active exchange of information and opinions in these e-mails, as opposed to the mere passive receipt of information, suggests a collective intent to deliberate and/or to discuss Board business.”
In 2004, the Virginia Supreme Court determined in Beck v. Shelton that the exchange of e-mails between city council members and certain members-elect did not constitute a meeting because “the e-mails did not involve virtually simultaneous interaction.”
“Rather, the e-mail communications at issue in this case were more like traditional letters sent by ordinary mail, courier or facsimile,” the court wrote. “The record contains printed copies of the e-mails in question. The shortest interval between sending a particular e-mail and receiving a response was more than four hours. The longest interval was well over two days.”
The court concluded that simultaneous e-mail communications in a chat room or through instant messaging could trigger the open-meetings act, but not e-mail that was more akin to ordinary mail.
At least one public-access advocate questions that ruling. “That is an odd way to define a meeting — whether the e-mail communications are simultaneous or not,” Davis said. “If four members of a public body are discussing a public issue, then to me it is very clearly a meeting. The court placed all its emphasis on time and none on content. It should have placed more emphasis on content and participation.”
While not a judicial decision, an advisory opinion by the Florida attorney general in March 2001 examined the issue of e-mail as a public record and a public meeting. The attorney general said that a series of e-mails from one council member to another containing just factual information is a public record but does not trigger the open-meetings law “when it does not result in the exchange of council members’ comments or responses on subjects requiring council action.”
The judicial branch, by nature, is the most reactive of the three branches of government. Cases literally take years to work their way through the courts. Experts say the remedy for the e-mail/meetings dilemma must come from the legislatures rather than the judiciary. Many access advocates say the legislatures must respond to documented problems and change the open-meetings laws to keep up with technology.
“Even though it may not be violative of the letter of the law, public officials are beginning to realize it is violative of the spirit of the public-access laws, which hold that the public should have some participatory right in the deliberation process conducted by their public officials,” Davis says.
Says Landon, “Because of the ease of e-mail as a communications tool and the fact that it is so ubiquitous, it goes way beyond what facsimile or letter-courier capability can do.
“We have to have some special rules to deal with e-mail. I don’t think anyone has a model law. Until there are documented abuses of the use of e-mail to violate open-meetings laws, most legislatures will be reluctant to do anything because they usually react only when there is a crisis.”
Important public-access issue
Public-access advocates emphasize that electronic means should not be used to circumvent the letter or spirit of open-government laws. They point out that the public must be able to participate in democratic government.
“If we truly believe in participatory democracy, we have to stick to the principle that ordinary citizens must be full partners in their own government,” McMasters says. “If they are shut out from deliberations by elected officials, their partnership is not just diminished, it is dissolved.
“When elected and appointed officials criticize the public for not participating in civil affairs or voting, a lot of times that is in direct proportion to the accessibility that public officials provide for the public and whether or not public citizens are made to feel that they have a voice,” McMasters added. “If electronic means are used to shut out or to reduce participation by ordinary citizens, then government is going to be proportionally weak. By that I mean that democratic decisionmaking works best when the most minds and the most perspectives are invited to the table.”
The question then presents itself on how to ensure that public officials respect the principles of open, democratic government when it comes to open meetings. There is no simple answer. As Landon says, “It is a training issue, an updating-the-law issue and an attitude issue.”