Technology helps share, hide records

Advanced technology has made it easier than ever to feel connected with your government: You can watch council meetings from your smart phone; tweet your representative about a problem in your neighborhood and follow the governor on Facebook.

But the same technology, such as emails and texts, also provides an avenue for elected and government officials to communicate outside of the public eye. South Carolina Press Association officials say the Freedom of Information Act considers any communication having to do with public business a public record, just like a letter written on senator's letterhead, and the onus is on the public body or official to maintain them.

Yet enforcing the law is another story, as residents and reporters across the state have had problems getting access:

--Following a series of Post and Courier stories, Gov. Nikki Haley's office acknowledged that it deleted emails sent to the Department of Health and Human Services over a nonpartisan, taxpayer-funded committee she established to decide how the state should implement the federal health care overhaul. The governor's office maintained the emails were deleted because they were "of routine matters."

--The Fairfield County School District charged The Herald Independent of Winnsboro $500 to process the newspaper's request to see district-issued cellphone records over a six-month period. The district later told the newspaper it could not provide images on the phones taken by school board members because the cellphone provider, which isn't subject to the state Freedom of Information Act, can't turn over the images without a court order.

--Lexington-Richland School District 5 officials told The New Irmo News in January it would have to charge the newspaper $50,500 per school official for access to two year's worth of emails regarding school district enrollment. The total price was $550,000, according to the newspaper.

"Some of this is just so new that the technology has outstripped the ability of government to manage it," said Richard Harris, director of records management for the S.C. Department of Archives and History.

The Department of Archives and History doesn't have the staff and resources to inspect or store all public records across the state, Harris said. So, in almost all cases, it's up to the public officials themselves to determine which of their communications qualify as public records and which category they fall under to determine how long the record should be kept.

With so much self-policing, each public body is bound to have its own interpretation of what is public record and what isn't.

The Freedom of Information Act considers public records open "regardless of physical form or characteristic," a phrase that's been in the law since at least 1987, according to S.C. Press Association Attorney Jay Bender.

Bill Rogers, president of the S.C. Press Association agreed but said the law could probably be more clearly defined regarding electronic messaging, "especially when it comes to email and texting."

Charleston City Council recently voted to amend its code to allow council members to communicate by text or email during meetings. Among those voting in favor of it was Councilman William Dudley Gregorie. He said he doesn't generally text during meetings and has never received a text from another councilman during a meeting, but likes to have his phone on him in case of a family emergency.

Rogers and Bender pointed out that using emails and texts to conduct public business can cut both ways. They can be difficult for the public and reporters to find but the senders are also trusting the recipients not to forward the messages on to others, a scenario that has occurred all over the country to the senders' embarrassment.

"Technology might make it easier to hide but it also makes it easier to blow the whistle," Bender said.