RALEIGH – Any public official who seeks to avoid disclosure of information by using apps to “disappear” are committing an “fundamental and inexcusable betrayal of the trust the public places in its officials,” says WRAL’s public records reporter Tyler Dukes.
When the Skinny read the alarming report from The Associated Press about public officials’ use of apps to “disappear” messages as a means of avoiding open records laws, the first person on the contact list was Dukes.
“The public has a right to know what government officials – elected or appointed – are doing on their behalf,” Duke explains.
“That right is central to the founding of our nation, and in North Carolina is explicitly inscribed in law.
“Any effort to use apps like these to avoid disclosure flies in the face of the letter and spirit of the law, and is also a fundamental and inexcusable betrayal of the trust the public places in its officials.”
The AP report pointed out “the proliferation of digital tools that make text and email messages vanish may be welcome to Americans seeking to guard their privacy. But open government advocates fear they are being misused by public officials to conduct business in secret and evade transparency laws.”
When secrecy is permitted – but on the record
This argument is not purely academic. It’s also about how government officials decide to spend the people’s money.
Tyler Dukes
The secrecy surrounding the state’s recruitment of huge development projects being dangled by Apple (a new campus) and Amazon (HQ2) has helped bring to a higher level the debate about the offering of tax incentives and other benefits ranging from “free” land to training for new employees at the expense of the public.
Legally, public officials can keep some negotiations secret. Yet documents about negotiations are preserved and can be required to be released after a period of time if reporters or groups ask.
But can we be certain that all the pertinent information is kept? What happens if something is deleted or some person or persons try to withhold information?
“In North Carolina, as in other states, some records are covered by very specific exemptions that either temporarily or permanently limit the public’s access to them,” Duke explains. “Think law enforcement records or taxpayer information. In the case of economic development records, the law says these documents can be withheld, but must in large part be produced after a project is announced.
“I guess it’s technically true that we can never be certain that all pertinent information is released after we request it. But it’s generally not in the best interest of public officials to surreptitiously withhold information, because it does not end well for them when reporters and the public find out. And we often find out.
“It’s also more difficult with technology like archiving systems, which save the information whether it’s deleted or not.”
Forcing the issue
“If we’re of the opinion that an agency isn’t following the law, either by withholding records or purposely delaying our access to them, any requester has the option to sue to force disclosure,” he adds.
“We’ve done that, as have many other news organizations across the state, because defending the public’s right of access to information created on their behalf is central to our mission.”
Dukes, who joined WRAL in 2013, is passionate about the public’s right to know. An NCSU graduate, he joined WRAL in 2013 and currently is an adjunct lecturer, Duke University Sanford School of Public Policy. In 2016-2017, he was a Nieman Fellow at Harvard University. After reading the AP report, he took to Twitter:
“Great reporting from the @AP: Private messaging apps increasingly used for public business.”
Talking privacy and policy
In an email Q&A, we discussed various issues related to messaging.
- Is the difficulty of gaining access to what should be public record becoming more difficult? Please explain.
Yes and no. We’ve seen efforts by government officials on the state and federal level to throw up barriers to public records for years, either with new secrecy laws or unlawful practices. But there’s also a growing awareness of the importance of transparency among our readers and viewers, who we know deeply value an open and accountable government.
The more the public understands public records and their importance to the foundations of this country and this state, the more it becomes a social norm.
Of course a government official’s email is public record.
Of course the contract between a private company and the state is public record.
Of course the receipt from the mayor’s steak dinner paid for with the city’s credit card is public record.
The understanding – and demand – for these types of records means there’s much greater public pressure to comply with the spirit of disclosure enshrined in state law.
- How can the media, the public and organizations fight this trend?
We, as both a media organization and a part of the community we serve, need to strongly advocate for open government and explain why it’s important not just to the investigative story or the 6 o’clock new, but the basic, healthy functioning of a democratic system.
We also have to show our work by demonstrating how public records can form the foundation of our government watchdog reporting, and make it clear that journalists have no special right of access. These laws are not written for us, but for the public.
The more the public is on our side on this issue, the more weight we can bring to bear against government actors who resist disclosure and opt for secrecy.
- Are text messages of public official messages retained if they use a government-provided phone? What about a private phone or private email?
In theory, text messages are retained or archived on government-provided phones in North Carolina, although the system and protocol for doing that in practice varies from the local all the way to the state government level. These text messages, with few explicit exceptions specified in state law, are the property of the people, not the officials themselves, so they should be public.
Private phone and email messages, on the other hand, are not routinely archived by governments as a practical matter.
But since the scandal involving Democratic Gov. Mike Easley’s use of a secret Yahoo account to exchange emails with staffers and avoid public disclosure, subsequent governors Republican and Democrat have issued executive orders asserting that private emails conducting the public’s business are indeed public record.
We audited these practices, by the way, in a 2016 Sunshine Week project.
- Messages from government officials indicate a notice that emails are kept as part of the public record, correct? What happens if someone tries to circumvent that and eliminate emails?
They typically do include some sort of boilerplate language, but there’s no real requirement to do that and it doesn’t really mean much. Public records are public records, disclosure or not.
On the state level, an archive system means that public officials can delete emails but have them retained officially as part of the record. They’re unable to delete messages from that archive, so when the public requests them, that’s where they’re gathered from.
Many counties and cities have similar archiving systems, but not everyone. In those cases, there’s a risk that when emails are deleted, they’re gone for good.
This would (at least in my view) be a violation of state law and policies governing the retention of records, but it would be hard for the public to know about it without someone looking very closely.
- What agency or agencies are responsible for keeping emails and other communications as part of the public record?
If it’s a public agency (or in some cases a public-private agency with specific disclosure rules, like the Economic Development Partnership of North Carolina), it must retain emails and other communications according to the rules set by the state Division of Archives and Records.
There are rules and timelines for local governments, state agencies and universities.
- What organizations are you a part of that fight for the public’s right to know?
Well, I’m a reporter, first off. And as a reporter, advocating for the public’s right to know is one of the few causes I can openly and loudly advocate for (and I do that quite frequently, whenever someone will provide me a soapbox). And at WRAL News, we’ve demonstrated a commitment to fighting for public records, open meetings and transparent government alongside other news organizations in the Triangle and beyond.
We’re also members of the N.C. Open Government Coalition, a group of government officials, media organizations and transparency advocates who work together for the purpose of ensuring the right of public access.
