Is it illegal for elected officials to text each other during public meetings? No, but it has raised some questions about transparency as the Virginia’s Freedom of Information Advisory (FOIA) Council subcommittee will weigh in. They may soon issue statewide guidance to city councils and county boards on the legality of politicians tapping out text messages on their phones while conducting public business.
This new revelation comes after a dispute surrounding public officials and their text messaging at a meeting two years ago in Loudoun County.
In 2016, the county’s land-use committee held a meeting about a proposed location for a Harris-Teeter grocery store. According to a report from the Richmond Times-Dispatch, a member of the Loudoun County Board of Supervisors used text messages to lobby his colleagues at the meeting, even though he was not in the room at the time. Following the meeting, other supervisors disclosed to the audience that they were receiving the messages.
When FOIA Council Executive Director Alan Gernhardt heard of the dispute, he said it did not appear to violate public meeting requirements, due to the fact that the supervisor was not a member of the committee making the decision on the grocery store. Since the supervisor sent a text message to each person, individually, instead of sending a “mass text,” Gernhardt explained that it did not constitute a level of secret participation in a public meeting.
On the other hand, Gernhardt said the Loudoun case raised the question of what current Virginia law says about elected officials using their phones to dictate a dialogue that the public at-large cannot see or hear, thus running into the problem of, “having a secret meeting within an open meeting.”
“I still don’t think it violates current law,” Gernhardt said. The only issue that may be raised is that, “…people are concerned about how it could be misused, potentially.”
Virginia courts have issued opinions on similar issues involving emails in meetings. They found that any group email thread had to involve a simultaneous back-and-forth to invoke open-meeting laws.
Megan Rhyne, executive director for the Virginia Coalition for Open Government, said rules for open meetings have not kept up with advances in social media like group texting, Facebook, and Twitter.
“I think people embrace the ease of that without necessarily thinking through what their responsibilities were for records retention and records production,” Rhyne said.
Officials from the FOIA Council have been unsure whether in invoke a sweeping ban on phone usage in meetings. They cite that elected officials may need to use their phone in emergencies or to post issues on social media. Furthermore, they say a one-on-one text message exchange is, “functionally no different than two elected officials huddling up for a sidebar conversation.”
Even if texts from public officials during meetings do not break the law, FOIA Council members said that elected officials should understand that any messages related to public business are public records subject to disclosure, regardless of whether the phone used to type them was government-issued or a personal device.
“I would think as long as you know that those records are going to be subject to FOIA, you would be careful about how you would use that,” said FOIA Council member Michael Stern.
But, are all texts from elected officials really subject to FOIA?
With the General Assembly, Roger Wiley, an attorney who represents Loudoun County and other local governments, said that lawmakers frequently text during session, including sending messages to him.
“What I do know is that the General Assembly members text during the floor sessions, not only to each other, but to outsiders,” Wiley said. “I’ve received those texts and answered back.”
In the General Assembly, lawmaker’s emails and text messages are considered “private” due to an FOIA exemption. For regulations on text messaging and public officials, Wiley says the state legislature should avoid imposing new rules on local governments it won’t apply to itself.
