Gov. Brian Sandoval has weak legal and public policy grounds to defend his decision to withhold text messages between himself and the leadership of NV Energy, according to open government experts, if the examples in other states and cities were to be followed in Nevada.
Courts and attorneys general in at least 18 states have addressed the issue, of which “decisions have overwhelmingly favored public access,” according to a paper written by Joey Senat, a professor who teaches media law at Oklahoma State University. As of 2014, the law in 15 states requires correspondence related to state business to be turned over in public records requests — even if that information is stored on private phones or computers.
“If you limit freedom of information laws to those communications that take place over government-owned channels, then you arbitrarily exclude communications — maybe even most communications — based on a meaningless distinction about which technology you used,” said Peter Scheer, the executive director of the First Amendment Coalition.
Solar power company Sunrun filed a lawsuit against Sandoval Wednesday to compel the release of text messages as part of the ongoing controversy over the state’s net metering policy. Although the governor’s office released emails and other written communication between his administration and NV Energy’s leadership, it declined to include text messages on the grounds that the governor had used a private cellphone to text.
Bryan Miller, senior vice president of public policy and power markets for Sunrun, called its legal challenge “black and white,” adding, “to take a position that (the texts are) not discoverable is frivolous.”
"SunRun has continued to pressure Gov. Sandoval to interfere with the Public Utilities Commission in order to benefit their private business," Sandoval spokeswoman Mari St. Martin said. "While the governor has been a supporter of the solar industry, it would be improper for him to try and use his office to influence the PUC's decisions. Our office has given SunRun more than 100 pages of emails and everything we have in our possession and control."
Almost every jurisdiction that has addressed the issue has agreed with Sunrun’s position.
In April, the secretary of state in Washington said that the state’s open government law applied to text messages that pertained to public business “regardless of whether the device were government-issued or privately owned,” adding, “If the text messages relate to the work of the agency, then it does not matter if the device involved is agency-owned or personally-owned.”
A state court ruling later agreed with that interpretation of the law, holding that “text messages sent and received by a public employee in the employee's official capacity are public records of the employer, even if the employee uses a private cell phone.”
Not every case involving text messages has been found in favor of transparency. In 2014, a California appellate court ruled that emails and other electronic records produced by private devices were not public records, even if they pertained to civic affairs. The California Supreme Court is hearing a challenge to that ruling, and is expected to issue a decision soon. However, in the overwhelming majority of public records cases involving privately-generated text messages or emails, government officials have turned over information — regardless of the ownership of the device.
Most prominently, former Secretary of State Hillary Clinton has been forced under the federal Freedom of Information Act to turn over emails stored on a private server located in the basement of her home in Chappaqua, N.Y. Clinton later called that practice a mistake.
In Arizona, the Arizona Capitol Times won a fourth-month long battle with state officials to turn over text messages used to conduct public business. “It’s the message, not the medium that creates a public record,” said Rachel Leingang a reporter on the project. “No matter how you send it if you are talking about the public’s business the public has a right to know.”
Although the governor and Democratic members of the state legislature agreed to turn over text messages, legislative Republicans opposed the request — after months of requests, state house Republicans did, while as of November, GOP members of the state senate continued to refuse. “I don’t think people were too happy we were going after their text messages. But if you’re a public official, you sign up for that,” said Leingang. (The texts that were released were heavily redacted.)
In September, the Chicago Tribune filed suit against Mayor Rahm Emmanuel for failing to release private emails and text messages pertaining to city affairs. Emmanuel defended himself by telling local television, "I have a practice that my political and personal stays on my private email, and city business is on the government, and that's the way I operate.”
In 2014, the Mississippi State Ethics Commission issued a nonbinding ruling calling for the mayor of Tupelo to turn over texts from a private phone requested by a local newspaper, saying that open government laws applied to all cases in which government business was discussed, "regardless of where the record is stored.”
Nevada's public records law is silent on whether text messages must be turned over, said Adam Marshall, the Jack Nelson-Dow Jones Foundation Legal Fellow at the Reporters Committee for the Freedom of the Press, although it does state that its provisions “must be construed liberally” and that all records are presumed to be included in the law unless specifically made exempt."
“It does leave some interpretive space open,” said Marshall.
But the public policy rationale behind the law — and open government laws across the United States — is clear. “It doesn’t matter what the medium is. The point is to ensure that citizens of a state are able to obtain information about what their government is doing,” he said. “If it’s an elected official doing the public’s business, it doesn’t matter if they are using text messages, WhatsApp, Viber, Yo or their Apple Watch. The rationale behind the laws is not the medium, it’s access to information.”
Scheer agreed, comparing the governor’s defense to a claim that letters written about state business bearing personal letterhead would be immune to public records requests. “No one would dream to argue that all you had to do was to use a different piece of stationery and pay yourself for a stamp to bypass the laws.”
When asked if doing so would present a burden to state officials or have an effect on the content of their communications with entities like NV Energy, Scheer chuckled. “Of course there would be a chilling effect,” he said. “But I don’t care really very much.”