Dear Legal Mailbag:
I recently had the distinct displeasure of “attending” a joint meeting on Zoom of the Nutmeg Board of Education and the Nutmeg Board of Finance, with its irascible Chairman Seymour Dollars demanding that the Board of Education cut its budget. During the meeting, I noticed that members of both boards seemed to be on their personal cell phones a lot, engaged in what appeared to be text messaging. At various times in the meeting, I even noticed non-verbal gestures by the members after picking up their phones and looking at them. I am no detective, but I do have eyes, and I wonder whether the members of these boards could be communicating with each other or members or the general public during the meeting. Is that allowed? It seems fishy to me.
What an observant fellow you are! Most questions about public officials and text messages relate to the “records” provisions of the Freedom of Information Act. But your question raises issues with the “meeting” requirements as well.
The FOIA defines “public records” expansively as follows:
(5) “Public records or files” means any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, . . . whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.
Conn. Gen. Stat. § 1-200(5). The key elements defining “public records” are that the information (1) must be recorded, (2) must relate “to the conduct of the public’s business,” and (3) must be in the possession of a public agency. Significantly, the term “public agency” includes public officials. Conn. Gen. Stat. § 1-200(1).
Clearly, text messages, whether sent or received by a public official, that relate to the public’s business are public records that must be disclosed upon request (unless some applicable exemption applies, as when the text is an attorney-client communication or contains confidential information, such as FERPA-protected student information). The Freedom of Information Commission has issued many decisions involving text messages over the years, repeatedly ordering disclosure of texts if they relate to the public’s business.
Texts that are sent or received by a public official during a public meeting raise a very different issue – whether the public has been denied access to a public meeting under the “meeting” provisions of the FOIA. It may go without saying, but the right to attend a meeting includes the right to hear what is going on. Legal Mailbag is aware of only one FOIC decision that considered a claim that texts received by a public official during a public meeting were an FOIA violation. Camara v. Demirs, et al., Docket #FIC 2016-0678 (June 14, 2017). There, however, the Commission found that the public official was not aware during the meeting that he had received the text in question, and it dismissed the complaint.
By contrast, the Freedom of Information Commission held in another case that “secretive conduct” by members of a public agency, including speaking in voices softer than usual, effectively denied members of the public the right to attend the meeting. Saluga v. Board of Assessment Appeals, Town of Brookfield, Docket #FIC 2013-221 (January 8, 2014). Analogously, one can infer that texting among board members during a meeting on matters under consideration would similarly violate the FOIA because the meeting would thus not be “open” to the public. Was that the case in Nutmeg?
Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.