Lawmakers' Cell Phones Often out of Public Reach

Sunday, 13 Mar 2011 07:51 AM

 

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COLUMBUS, Ohio (AP) — It was 1992 and Ohio Senate President Stanley Aronoff was on the golf course when his cell phone rang.

The Republican lawmaker stepped away from his companions, Coca-Cola executives, to take the call. When the exchange was over, Aronoff and then-Democratic House Speaker Vernal Riffe had agreed to wedge an unpopular carbonated beverage tax into that year's state budget. At a penny per 12 ounces, the decision would cost distributors of Coke and other sodas $67 million — that's $148 million in today's dollars.

And it happened right under their noses.

Lawmakers are increasingly conducting public business on their personal cell phones, through calls and text messages. Yet the numbers for those phones and the bills that show whom lawmakers called or texted and when are largely unavailable to the public for review. Legislatures don't pay those bills, which is among the reasons that records related to the phones aren't considered public under state law.

Records requests submitted by The Associated Press to the Ohio Senate, the Ohio House and Gov. John Kasich seeking the personal cell phone numbers of top staff, lawmakers and the governor, along with related phone bills, revealed that no such public records exist. All that turned up was a list of House staff members' cell phones that had been typed up for internal distribution — no information for lawmakers themselves.

It is the same in most other states.

Only a few, including Florida, Colorado and Tennessee, have placed electronic communications under their open-records laws, according to the Reporters Committee on Freedom of the Press.

In Michigan, the high-profile case of former Detroit Mayor Kwame Kilpatrick, whose text messages with his lover and top aide were forced into the open by the state Court of Appeals in 2008, set an early precedent for establishing officials' texts and cell phone records as public. But that doesn't mean public bodies are compelled to keep such records, nor that texts retained by a private company can be reached through open-records laws.

And the law isn't even decided on what legal standard to apply to text messages. Are they phone calls, e-mails or memos?

Some states have moved toward shielding, rather than opening, the records. Just in the past week, Utah Republican Gov. Gary Herbert signed into law a measure to prohibit release of public officials' text messages, voice mails and other electronic communications, amid concern that access had been abused by journalists.

Brenda Erickson, a senior research analyst for the nonpartisan National Conference of State Legislatures, said 31 states including Ohio ban or limit the use of electronic devices on the floors of House and Senate chambers.

Erickson said such policies are generally aimed at controlling disruptions, not preventing inappropriate communication between or among lawmakers — or limiting lobbyists' reach. Cell phone and texting restrictions are often not effective in committee hearings, the front line on any bill, she said.

"It happens all the time, and people do it to avoid disclosure," said Neil Clark, a former Senate finance director and longtime Statehouse lobbyist in Ohio who facilitated Aronoff's cell phone call on the pop tax, which was later repealed.

The practice means silent text messages can fly between a lawmaker and a lobbyist seeking to sway his or her vote without a public hint of the interaction. A list of cell communications that took place on the day of a hearing would not be a public record.

Clark said he asked legislative leaders to extend a ban on texting during floor sessions to Ohio committee hearings.

As a lawyer who has extensively explored privacy issues, Aronoff says whether the bill for the cell phone he used that day on the golf course in 1992 is a public record is not a simple question.

For one thing, lawmakers are generally protected by "legislative privilege," which shields certain communications so lawmakers aren't impeded from freely doing their jobs.

"These things are never quite as easy because these are both constitutional rights: the right of privacy and the right to know," Aronoff said. "From the beginning of our country, these have been two rights that are bumping into each other and you can make good cases for all of them. Is giving truth serum right or not?"

Aronoff retired as Senate president in 1996. Riffe, the House speaker, died in 1997.

Erickson said the cell phone conundrum began with the best intentions. Legislatures trying to save taxpayers money opted not to pay for lawmakers' private cell phones.

As the technology has become pervasive, legislators have been able to circumvent public disclosure by avoiding their more likely public land lines. Many avoid their state-sponsored e-mail accounts, too, recognizing that those communications are more readily available through public records requests.

And there is another twist, Erickson says: Even state legislators' activity on taxpayer-funded phones has been determined to be confidential in some recent court challenges to public records laws.

"It's one of those Catch-22 situations," Erickson said. "Do you require everything to be open and then penalize constituents who are requesting confidentiality, or close everything and have ethical problems arise later on?"

© Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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