The village’s recent purchase of e-mail archiving software and the expected approval of a new telephone system that would save phone messages as e-mails promises to enhance citizen’s access to government information via FOIA requests.
It also suggests that casual voice mails, informal e-mails and even Twitter and Facebook comments are as open to public scrutiny as official paper documents.
Less than two weeks ago, the Chicago Tribune reported that e-mails exchanged by Northwestern University journalism students during their investigation of a 31-year-old murder conviction were among materials subpoenaed by the Cook County state’s attorney. The school turned over many of the documents requested, including copies of audio and video interviews, but balked at providing the e-mails.
Tribune columnist Eric Zorn took issue with the subpeona, describing email exchanges as “sloppy, blunt, intimate, haphazard.”
He also quoted the legal director of the Electronic Frontier Foundation, who acknowledged “the law hasn’t caught up with technology.”
While the courts ascribe gravity to written communications, Zorn argues that e-mails — not to mention instant messages, 140-character tweets and rapid-fire Facebook exchanges — have more in common with the spoken word than the written record.
While that may be true — and growing truer by the day as more and more of us take our conversations, business relationships and other communications to the internet and our favorite social networking sites — it can only be a positive if government communiques of all kinds are subject to the Freedom of Information and Open Meetings acts.
“It is what it is. What are you going to do?” Mayor Ron Sandack said at the Oct. 27 council workshop meeting when asked by resident Marge Earl if voice mails captured as e-mails by the proposed new Voice over Internet Protocol telephone system would be “FOIAable.”
The answer was ‘yes.”
Also subject to FOIA are any public records created by elected officials on social networking sites or personal e-mail accounts. As long as they are available, of course.
“We’ve built systems that seem to remember everything we type or think,” Cindy Cohn of the Electronic Frontier Foundation told Zorn. “What we need now are better systems for forgetting, or at least for allowing us to choose what gets remembered.”
That may be true where private citizens are concerned, but maybe not so much when the electronic communications in question usher from officials engaged in public business.
In fact, it will be interesting to see how handily the village’s new systems serve up FOIAed e-mails. And potentially even more interesting if official messages from Twitter, Facebook or personal e-mail accounts ever get swept up in the FOIA net.
I’ve served on technical teams implementing record retention systems in the financial industry. They took it very seriously, as they were subject to stringent regulations. Every email and telephone call was recorded, indexed, and retained according to specific records retention policies.
Keep in mind, as John will no doubt attest, that such archiving of electronically stored information (ESI) of this nature also means more to collect, more to review for relevance and privilege, and more to produce in the face of legitimate requests. In short, more ESI volume means more costs to the organization (even if you employ advanced analytical tools, which unlikely are in play here) and more to potentially go awry if each production is not studiously monitored and executed. And what if the person who submits the FOIA request is not technically skilled? Must the Village reduce all those various forms of responsive ESI to a form that is both readily accessible and comprehensible by the requester? If so, potentially still more costs. “More costs” is not exactly a phrase in favor these days.
Thanks for your thoughts Martin!
Editor’s note: Personal messages belong in an personal e-mail J.J.
This could be fun! I’ll just randomly place hot topics as my subject matter and send it to myself.
And in the actual body of the email I’ll place photos of say a donkey or some other animal.
Or maybe I can sell ad space? A new revenue stream. hmm the possiblilities.
It will be interesting to see how the system catagorizes emails and VoIP messages.