AUGUSTA — As many as 4,500 state workers may have access to smartphone text-messaging technology that could easily be used to skirt Maine’s open records law.
How many employees actually use the phones, either state-issued or personal, to conduct state business is unknown and according to some, simply not happening.
“Despite all the hysteria and blaring headlines, there is no secret messaging system,” Peter Steele, communications director for Gov. Paul LePage, wrote in an email to the Sun Journal.
Steele said Wednesday everyone on LePage’s senior staff, except the governor, carries a BlackBerry smartphone.
But they use them infrequently for text messages and do not use the more covert phone-to-phone BlackBerry system at all, Steele said.
He said he believed the phone-to-phone messages would be retrievable and would still be subject to the Maine Freedom of Access Act. “Even those are not ‘secret,'” he wrote.
“Senior staff communicates by phone, email or simply walking into each other’s office,” Steele wrote. “It’s much easier to phone or email.”
Steele showed a reporter his BlackBerry and noted that he dislikes typing on the device’s small keyboard.
About 2,000 of the phones in state employees’ hands are state-issued, while the remaining 2,500 are owned by employees but are authorized for use on the state’s contract with U.S. Cellular, using BlackBerry technology and servers not managed or owned by the state, said Jennifer Smith, a spokeswoman for the Maine Department of Administration and Financial Affairs.
Most of the phones are BlackBerry devices, which can be used to text or enabled to send messages directly from phone to phone.
Both means of communication appear to be beyond the full reach of the Freedom of Access Act, the state’s open records law, which makes public most written communications between state employees doing state business.
The issue of text-messaging and whether state employees were using the devices to evade public disclosure under the law came to light earlier this month when a former state employee told the Legislature’s Government Oversight Committee she was instructed to use text-messaging as way to avoid FOAA.
Sharon Leahy-Lind, a former division director for the Maine Center for Disease Control, said she was instructed by superiors to use text messages because the messages were hidden under the state’s Freedom of Access Act.
Leahy-Lind’s former supervisors later denied they instructed her to avoid FOAA with text messages.
Smith said a full list of who has access to the BlackBerry system would be released soon, but most state phones are not supported with text-messaging plans. She said most workers use the devices only for email communications, which are also subject to FOAA.
A sample of state workers with the devices indicates that some have phones that allow only inbound text messages.
Smith said the dominance of BlackBerry devices is because at one point, they were reputed to be the most secure among mobile phones. She said some state employees are authorized to use their personal mobile phones for work and are allowed to link into the state’s email servers with them.
Both Smith and LePage’s press secretary, Adrienne Bennett, have said concerns within the administration have prompted a discussion about setting a policy against conducting state business by text message.
Lawmakers too are concerned and several said this week they will ask the Legislature’s Right to Know Advisory Committee to look into the matter for guidance and they may craft a law to limit or prohibit the use of text-messaging for state business.
Rep. Jarrod Crockett, R-Bethel, a member of the Legislature’s Judiciary Committee, said he would ask the advisory committee to study the matter.
He said the committee, which includes lawmakers, citizens and state officials, has staff that can research whether the use of text-messaging for official state business is widespread and whether a new law seems warranted.
While some lawmakers said they see texting as a phone conversation, others said messages, however short, when typed into a device and sent constitute “written communication” and would be subject to FOAA.
Emily Shaw, the national policy manager for the Washington, D.C.-based Sunlight Foundation, an open government advocacy group, said according to Maine law, the latter have it right and that Maine’s FOAA specifically mentions electronic communications.
Shaw, a former assistant professor of political science for Thomas College in Waterville, said the state should ensure a means to easily monitor text-message communications among employees, especially those with state-issued phones.
She said a few other states, including New York and Florida, have wrestled with the problem of public officials using text messages including BlackBerry-to-BlackBerry messages to conduct official business.
Getting copies of text messages, however, is technically difficult because the state doesn’t maintain the servers on which they are stored.
The inability to effectively review text messages sent from state phones or between two specific phones would make it difficult to check for misuse, Shaw said.
“It would be difficult to prove (any misuse) without the smoking gun,” Shaw said.
There are also legal concerns regarding federal law, which protects individual text messages from disclosure, except in the case of a law-enforcement investigation or with the consent of sender and recipient, said Zach Heiden, legal director for the American Civil Liberties Union of Maine.
“Everyone should be concerned if government employees are using certain communication methods to avoid public accountability,” Heiden said. “This situation deserves a thoughtful response, one that protects both the right of the public to know what our government is up to, and the right of government employees to keep their personal communications private.”
Lawmakers have acknowledged that the state’s open records law occasionally needs updating to keep pace with technology.
Most said the growth in the use of text-messaging in general has taken off in recent years, so it’s logical that state employees would be expanding their use of it.
“This is all within the last 10 years that this has all occurred, and the idea of whether or not the state’s messaging protocol system should be all consistent so as not to allow any type of bypass to occur needs to be looked into,” said state Rep. Barry Hobbins, D-Saco.
That the state stores and archives employee email communications but not text messages is clearly in conflict with the intent of FOAA, Hobbins said.
Hobbins, one of the first lawmakers to serve on the Right to Know Advisory Committee, said the panel at the time couldn’t have foreseen where communications technology was heading.
“The whole thing needs to be looked at and the Right to Know Advisory Committee needs to contemplate any potential consequences,” Hobbins said. “It’s a whole new area of review and I think they need to include that in their mission.”
Lawmakers seem to agree that the technology does have the potential to be abused and the state should do what it can to safeguard against that.
That’s a sentiment shared by the LePage administration, Steele said.
“All communications are subject to FOAA, and we expect all employees to adhere to the law,” he wrote.
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