Friday, June 26, 2009

The secret key to why city council members are told not to blog

I'm one of those annoying people who will always tell elected officials I run into "man, you should blog." Sometimes they shrug me off, but I've had at least two long back and forth conversations with local electeds that got down to specific reasons why they don't blog. Basically, they got advice from their staff lawyer that they shouldn't.

The logic goes that if you blog about what you do as a city councilmember, the computer you blog on and all of the data that touched that blog post is now public. Or, could be public.

Walter Neary, a city council member from Lakewood, who gives a lot of advice like I do (and blogs about it) came across lawyers who gave their chilling advice during a conference:

I spoke to a standing-room-only crowd at the Association of Washington Cities annual meeting about the use of Twitter, Facebook and blogging to reach our citizens. ... The overall feedback I got afterward is that a lot of people were thankful ...

What got very odd is that four people... warned that these methods could bankrupt a city because of a court ruling involving them. Needless to say, their comments had quite a chilling effect on the discussion. I had to acknowledge their concerns without being familiar with the case.
The case is O'Neil v. Shoreline (here and here), and it involved an email from a city councilmember from a private account that was part of a public records request. They (now) former council member changed parts of the email, and the court ended up ruling that the city was resposible to make sure the email was available in its original form, even if it orginated from a non-city server.

So, lawyers working for cities across Washington State are a conservative bunch, and they don't want to end up costing their boss's any more money than necessary. If a city councilmember is going to start blogging about city business on some outside account, they're likely going to tell that city councilmember that its up to them to defend themselves in court when someone comes making metadata public records requests for their blogging.

I'm going to read the decision later this weekend, so hopefully I can figure out more. But, its ironic that a case that was meant to open the doors of local government is causing legal staff to offer the advice that its best to shut them right back up.

Don't blog, we don't want to get stuck with the legal bill and bancrupt the city when someone comes looking for your home laptop.

7 comments:

Anonymous said...

You are correct; lawyers are very good at taking existing legal precedent and crafting advice in the hopes their clients' actions won't eventually set some new precedent.

'Would be good to find someone - probably a team, which only includes (but is not dominated by) a lawyer - who can advise on how public officials *can* blog, twitter, and, you know, expand the voice of democratic process into the 21st Century.

Walter said...

This is a great dialogue, thanks for starting it, Emmett. The lawyer, Ramsey Ramerman of Foster Pepper, is the one defending Shoreline in the case. They're looking at high penalties because the regular forms of city insurance do not cover cities found in violation of the public records laws. This itself is odd because most actions of a local government are covered by insurance; I've heard that county governments have found some way to be insured in matters involving public records.

There's definitely more to this topic than meets the eye. For one thing, each form of SM is different and complex. Take Twitter. In theory, I could erase a record of Twitter posts. But I could also, in theory, burn a paper document that someone had requested.

As a city councilman, I'd agree that lawyers play a distinct role. They warn, and you have to take that into account but not let their advice decide everything because then government would never do anything. My personal objection to Ramerman's approach is that he was basically shouting 'Fire!' in a crowded room of elected officials without any context. He clearly had a point though .... there should be some evaluation of risks and benefits, that incorporates advice from lawyers but is not entirely settled by advice from lawyers. As an elected official, it might be most defensible for me to be huddled in a fetal position under the dining room table, but the public would not be served.

The trick to me is, who is going to figure this out? I'm not entirely comfortable having it figured out by the Association of Washington Cities, where they are always trying to kick the open public meetings and records laws down.
I just discovered the attorney has this site, http://www.localopengovernment.com/ which I'm going to have to look at later. There's a lot there. It's actually quite interesting to see this dialogue begin. And important. The majority of elected officials are not going to go near social media if they think the act is legally ambiguous.

Emmett said...

I think there are enough smart people around to be able to write some sort of handbook outlining the risks of SM in light of the PRA and some easy ways to make sure you're staying within the law.

I think the first step would be to not be a moron like the Shoreline deputy mayor.

Walter said...

Good! I hear a smart person volunteering to contribute to the effort. Glad this discussion got started.

Your point is well taken. I just had time to skim the Washington Coalition for Open Government brief on the Shoreline case, but they note that a lot of the judge's decision was based on the conduct of the councilmember who deleted part of the record. Their point is that future judges who look at this case as precedent are going to realize the court was acting because of the egregious conduct of the councilperson.

No council person on Twitter, Facebook or a blog is the kind of person to do that kind of crap that gives the rest of us a bad name. Still, the law applies to everyone.

Anonymous said...

I missed that session in Spokane as I thought it was billed as a "how to." I try to participate in others' blogs as I believe citizens need these conversations and openness in their communication with public servants. Why should it be okay to talk openly in one venue and not on the internet? - Pat Campbell,
Vancouver City Councimember

Walter said...

Hi Pat,

Of course I agree with you, but the objection has to do with public records act requests and the intricacies therein. This is an area that's not settled. I was fascinated to look at a parallel thread in a discussion group, govloop, and find this message about someone who ran into the same issue (apologies for the garble, I am cutting and pasting from a web page)

Reply by Andrew Krzmarzick 1 day ago
Hi Walter,
Like you, I had the chance to talk to local government this week about social media, delivering a full day of training for the Village of Western Springs, IL. I cited several examples of local government using social media and pointed them to CivicSurf. The slides (which include some local examples) are here. http://www.slideshare.net/akrzmarzick/web-20-for-western-springs-jun25-2009

The "IT guy" raised this exact same issue (metadata) at the end of my presentation...and a similar issue regarding the degree to which drafts of reports should be available to the public (if they are created, for instance, on a wiki) arose when I was speaking to Sarah Bourne in the governor's office for the State of Massachusett. So you're not alone in trying to address it. Let's figure out some solid answers together...

NARA is starting to look at records management as well

So this is getting unwieldy. How do we work through this? Wiki approach? How do we lash all this together?

Anonymous said...

What is disturbing to me is that the city attorney that works for the city council and mayor, would tell a city council what the city attorney will represent them in. The city attorney answers to the council and the mayor, and they are there to advise, not to make policy. If I was the mayor I would politely have a conversation with the attorney alone in my office describing that if the city council decides to do something that the city attorney will defend the council or should find another city to represent.