The Alliance for a Better UTAH respectfully disagrees with Bob Bernick’s April 29th suggestion that text messages shouldn’t be public record (See Maybe Lawmakers’ Text Messages Shouldn’t be Public Record http://utahpolicy.com/featured_article/maybe-lawmakers-text-messages-shouldnt-be-public-record). Similarly, we previously disagreed with Sutherland Institute’s Paul Mero when he suggested that the changes to GRAMA proposed by HB477 were justified for similar reasons. (See Mero Moment http://www.sutherlandinstitute.org/article_detail.php?id=3023&type=Search+Results&newsletter=1).
Bernick’s contention seems to be, for the most part, that text messages are “transitory” in nature and, as a practical matter, are difficult to collect and catalog. Mero’s contention was that text messaging is a new form of “contemporaneous communication” and, therefore, like an oral discussion, should be shielded from public view.
We disagree. While both Bernick and Mero make strong arguments that seem compelling on their face, we feel that these arguments fail under their own weight and are fraught with internal inconsistency.
The better argument, as Mero alludes, is that all communication should be public in the interest of transparency and good governance. That is, however, impractical because not all conversations are recorded or are intended for public consumption and, as Mero points out, few people really want to know how the sausage is made. Bernick, on the other hand, argues the need for a communications “safe harbor” and also points out the relative ease with which technology could soon allow the easy recording and transcription of all telephonic conversations, thereby questioning why all such conversations shouldn’t ultimately be public as well.
Flimsy as it may be, the answer seems rather simple. Oral communication has, for time immemorial, been respected as private. In answer to the collection difficulty that Bernick points to, we note that the same could be said for letters and other documents that have no obviously central collection point, or email before the widespread use of exchange servers and other central collection points.
However, to distinguish a text message from other forms of written communication as the equivalent of an oral, contemporaneous communication – whether in person or by telephone - is intellectually dishonest. Like Mero, Bernick simply decides to equate a text message and a phone call as being one and the same.
Mero suggests that an email discussion between two parties is different because it is not a contemporaneous conversation, though he acknowledges that this is merely his personal view and relates to his own use of the two modes of communication. Bernick notes that his own terrible texting abilities may lead him to his conclusion.
But one cannot honestly dictate what form of communication will be used for what purpose to a population as a whole.
The idea of hastening non-oral conversations toward the contemporaneous nature of speaking has been around for centuries. Talking may always be the most contemporaneous and expedient compared to available alternatives, but cost and technology have always imposed limitations on the ability to make such conversations practical in all circumstances. In the time of Pony Express letter delivery, cables and telegrams became relatively contemporaneous. The invention of the facsimile or overnight delivery made written communication cheaper and ever more contemporaneous. Email is another step in the evolution of constant - and contemporaneous – communication, and many people treat it as a convenience when compared to the difficult of trading voicemail messages until two people can talk by phone. Facebook, Twitter and text messages have provided us with an ever growing number of ways to communicate in real-time. Without a doubt there will be one or more other new methods of communicating contemporaneously before the end of this decade.
Although Bernick and Mero do not fall prey to the argument, lately we hear more and more people asserting that the public nature of the text message should be tested against the owner of the device or the identity of the party paying the cell phone bill. Here too we have to disagree. The test, as with all government records, should be its relationship to government business. This relatively simple test has worked for so long because destruction of evidence has very real consequences. However, to evade the simple government business test by using a personal device would make a mockery of the law.
When it comes to transparency in government and good governance, we need bright lines. We cannot do away with the oral conversation or the private meeting – nor, perhaps, should we – but if parties to a discussion decide to reduce that discussion to “writing,” whether by pen, typewriter or one electronic method or another, it should, subject to reasonable limitations, be subject to GRAMA, FOIA and the public’s right to know. Any governmental employee who doesn’t want their communication subject to such discovery should pick up a phone or meet in person but to distinguish a text message from any other form of written communication fails even the most basic smell test and fails under the weight of its own intellectual dishonesty.