March 13, 2011 in Nation/World

Cell calls, texts skirt records law

Julie Carr Smyth Associated Press

COLUMBUS, Ohio – It was 1992 and Ohio Senate President Stanley Aronoff was on the golf course when his cell phone rang.

The Republican lawmaker stepped away from his companions, Coca-Cola executives, to take the call. When the exchange was over, Aronoff and then-Democratic House Speaker Vernal Riffe had agreed to wedge an unpopular carbonated beverage tax into that year’s state budget. At a penny per 12 ounces, the decision would cost distributors of Coke and other sodas $67 million – that’s $148 million in today’s dollars.

And it happened right under their noses.

Lawmakers are increasingly conducting public business on their personal cell phones, through calls and text messages. Yet the numbers for those phones and the bills that show whom lawmakers called or texted and when are largely unavailable to the public for review. Legislatures don’t pay those bills, which is among the reasons that records related to the phones aren’t considered public under state law.

Only a few states, including Florida, Colorado and Tennessee, have placed electronic communications under their open-records laws, according to the Reporters Committee on Freedom of the Press.

In Michigan, the high-profile case of former Detroit Mayor Kwame Kilpatrick, whose text messages with his lover and top aide were forced into the open by the state Court of Appeals in 2008, set an early precedent for establishing officials’ texts and cell phone records as public. But that doesn’t mean public bodies are compelled to keep such records, nor that texts retained by a private company can be reached through open-records laws.

And the law isn’t even decided on what legal standard to apply to text messages. Are they phone calls, e-mails or memos?

Some states have moved toward shielding, rather than opening, the records. Just in the past week, Utah Republican Gov. Gary Herbert signed a measure to prohibit release of public officials’ text messages, voice mails and other electronic communications, amid concern that access had been abused by journalists.

Brenda Erickson, a senior research analyst for the nonpartisan National Conference of State Legislatures, said 31 states ban or limit the use of electronic devices on the floors of House and Senate chambers.

Erickson said such policies are generally aimed at controlling disruptions, not preventing inappropriate communication among lawmakers – or limiting lobbyists’ reach. Cell phone and texting restrictions are often not effective in committee hearings, the front line on any bill, she said.

“It happens all the time, and people do it to avoid disclosure,” said Neil Clark, a former Senate finance director and longtime Statehouse lobbyist in Ohio who facilitated Aronoff’s cell phone call on the pop tax, which was later repealed.

As a lawyer who has extensively explored privacy issues, Aronoff says whether the bill for the cell phone he used that day on the golf course in 1992 is a public record is not a simple question.

“These things are never quite as easy because these are both constitutional rights: the right of privacy and the right to know,” Aronoff said. “From the beginning of our country, these have been two rights that are bumping into each other and you can make good cases for all of them. Is giving truth serum right or not?”

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