Where is the line?

Ironic, isn't it? (0.00 / 0)

Putting aside my own feelings about the Evesham school board's decision to pull that video from the curriculum, I find it ironic that the ACLU, of all entities, would be pushing the limits of the 4th Amendment in this matter. To me, the constitutional issue here seems a lot more cut-and-dried than it does on what I presume is their First Amendment concern over the school board's attempt to control the content of the curriculum. After all,  school boards and administrations do that all the time. Or is there a 14th Amendment equal protection basis for their involvement?

Regardless, unless they have some independent reason to believe that there are private emails in which school business was discussed, they have no right to go snooping through board members' email accounts. And even then, I would think they would need to specify the other parties and probably the dates in which these email exchanges took place. Otherwise, what would be next -- requiring all public officials to have their home and cell phone conversations recorded 24/7?

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by: EWO @ Sun Dec 23, 2007 at 22:04:29 PM UTC

Actually (0.00 / 0)

I didn't see this before I posted, but the ACLU thinks they have precedent to win before the GRC...

ACLU attorney Jeanne LoCicero said afterward she believes she will prevail with the Government Records Council because the council has ruled similarly in a previous case.

"We always wanted the documents and to be before the GRC, and we're completely confident we'll prevail," LoCicero said.

We'll have to wait and see whether they are right.

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by: Jason Springer @ Mon Dec 24, 2007 at 00:17:12 AM UTC

[ Parent ]

Regardless (0.00 / 0)

Whether or not there is (bad) precedent to support the ACLU of NJ in this request, I just find it a bit appalling the New Jersey chapter of the nation's premiere watchdog of our Bill of Rights is on the side of delimiting the 4th Amendment.

William Donio, solicitor for the school board . . . contends e-mails received by board members on personal accounts and not forwarded are considered communications from private citizens and do not have to be disclosed under OPRA or common law.

I can't argue with that. How is it any different than getting a phone call or being buttonholed on the street?

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by: EWO @ Mon Dec 24, 2007 at 00:54:30 AM UTC

[ Parent ]

I wasn't saying I disagree with you (0.00 / 0)

That's why I asked people where they think the line should be.  I found that additional story after I made the post.  

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by: Jason Springer @ Mon Dec 24, 2007 at 01:02:36 AM UTC

[ Parent ]

Sorry, (0.00 / 0)

Didn't mean to imply I thought you were disagreeing with me. Just reacting to this additional story.
  I still don't quite know whether the ACLU is asking to "go fishing," or whether they have evidence of specific email conversations between officials that they'd like to reveiw.  Even then, I'm not sure they have a right to them, unless they believe that a quorum had been circumvented in violation of the Open Public Meetings Act. Again, how would this be different from a phone conversation -- assuming the board members' phone lines hadn't been tapped?

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by: EWO @ Mon Dec 24, 2007 at 02:38:19 AM UTC

[ Parent ]

Why is the computer itself relevant? (0.00 / 0)

What should matter is whether the e-mails were sent as part of official duty. One easy line is if the e-mails were sent from a government provided e-mail account.

Clearly, there has to be some way of telling what duties an elected official performs as part of his office versus what actions s/he takes as a private citizen. If there isn't a clear standard on this subject yet, then someone needs to get on that first.

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by: dennisl @ Mon Dec 24, 2007 at 01:33:10 AM UTC

The computer is relevant (0.00 / 0)

..only because it leaves a record, as opposed to a telephone conversation (assuming it hasn't been tapped) or a face-to-face conversation on a street or in a hallway.

Until now, I believe the clear standard for discerning "official action" has been whether an "off-site" quorum existed when certain conversations took place. I'm not sure that standard needs to change here. According to the  school board's solicitor as quoted in the second article posted by njdem, whether or not an email was forwarded does make a difference.

I'll concede that the quorum standard can be -- and has been -- defeated when one official individually  discusses and polls a fellow official on an issue, then takes it up with the next official, etc. until s/he's cobbled together a majority. But this has gone on since well before the advent of e-mail. And we should be worried about any remedy here being worse than the cure.  

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by: EWO @ Mon Dec 24, 2007 at 03:07:01 AM UTC

[ Parent ]

It isn't always a bright line (0.00 / 0)

I spent a short time as secretary for my union and can vouch that there are shades of shades of gray.

The school's email server didn't always work well - in fact, it marked anything with an attachment as spam.  When you are going into negotiations, this is a major problem.  So most of us used private emails.

Since the union job was part time and there was no official union computer, everyone used personal machines.

Personal machines, personal email, union business.  To do otherwise would literally have rendered electronic communications impossible to use.  Depending on the colleague, there may have been some mixture of private and official communications.  "Hey, are you guys coming for dinner this weekend - don't forget the exec board meeting on Tues."

This is a continuing problem with an amatuer government.  I still argue that, if there isn't enough work to have a full-time government, then government entities should be combined until there is.  I'd rather have one professional legislator who is 100% responsible for everything than to have 5 part-timers who shift blame/credit between them.

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by: Thurman Hart @ Mon Dec 24, 2007 at 03:15:44 AM UTC

a little suprised by the ruling (0.00 / 0)

I'm a little suprised by the ruling.  OPRA expressly provides for a denied requestor to appeal to the GRC or the superior court.  You just can't do both.  I've seen cases in which the GRC dismissed a case because the requestor later filed a superior court lawsuit, holding that the superior court has greater jurisdiction.

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by: Bergendem @ Thu Dec 27, 2007 at 18:59:53 PM UTC

On The Line... (0.00 / 0)

Without directly commenting on the merits of this particular case; I can envision a situation in which a school board wants to do something that they are unwilling to discuss in public, so they have private conversations to arrange the matter behind the scenes.

It seems, frankly, that that's how most legislative/administrative bodies "function".   I guess open debate and discussion is "untidy" and too risky politically.

So, if the number exceeds a "quorum" it then falls under the law?   What if the emails/conversations happened one by one?

I believe the public's business needs to be conducted in public.   Period.  

If one accepts the onus of being a public servant; one then loses the some rights to be holding private conversations/deals/arrangements with other public servants (that you are serving with) about the public's business.  

Maybe one way to deal with this is that all public business communication should be arranged through dedicated email accounts only?

This is actually a complex and subtle question and it wouldn't surprise me to see it before the SCOTUS in some form at some point.

Meanwhile, I remain sympathetic to the ACLU position in general.

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by: Nick Lento @ Thu Dec 27, 2007 at 19:45:21 PM UTC

One by one (4.00 / 1)

So, if the number exceeds a "quorum" it then falls under the law?   What if the emails/conversations happened one by one?

Nick, I conceded that this can, does, and has happened, and has happened since well before we had e-mail. I would imagine it happens most often over the phone. Would you be comfortable with the ACLU, of all entities, subpoenaing the phone records of all board members and, seeing that a  conversation between two of them took place, putting them on the stand and demanding to know what they talked about? Or should public officials have their phone lines recorded 24/7?

Are there no instances when two officials couldn't permissibly have a private conversation together? Ask that of your favorite legislators or congresspersons and see what they'd say.

I'd be interested in knowing why you "remain sympathetic to the ACLU position in general." My guess is it's because you're focused on the end and not the means. But traditionally, the ACLU has always come down on the side of zealously maintaining the safeguards afforded by our Bill of Rights. That's why over the years they've represented criminals, Klansmen, and neo-Nazis.

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by: EWO @ Sat Dec 29, 2007 at 18:43:12 PM UTC

[ Parent ]

You've Raised Excellent Questions, Thanks For A Shot At... (0.00 / 0)

 addressing them.

Would you be comfortable with the ACLU, of all entities, subpoenaing the phone records of all board members and, seeing that a  conversation between two of them took place, putting them on the stand and demanding to know what they talked about?

There would need to be an articulable probable cause, that would be sufficient to convince a judge.   Your phrase "of all entities" implies that the ACLU would have some kind of special power/status that it doesn't (and shouldn't!) have.   Justice is (supposed to be) blind, eh?

Are there no instances when two officials couldn't permissibly have a private conversation together?

Sure, they should be able to speak to each other on private business or casual affairs or general conversation as much as they like; but, if there is some kind of rule that prohibits them from doing the public's  business in private; then they should play/work by the rules.

All too often (if not most of the time) public officials forget that their job is to SERVE the public; not be the public's master.

Way too many public officials take their roles as ego/power trips and opportunities to advance self serving ideological, and financial agendas over the public interest.   It's much much much easier to get away with that in the dark hidden corners of private interactions/"deals" than in the cleansing light of bright sunshine!

I propose something novel in the world of politics.   How about the folks who make the decisions about our lives actually doing it in public?   Obviously, there may be occasions when "executive sessions" may be required for the discussion of sensitive/security matters.....but even those sessions are under the umbrella of a legitimate framework.

Ask that of your favorite legislators or congress persons and see what they'd say.

I suspect that many of them would object; after all who like changing habits.   Even when there is no sweetheart dealing or corruption involved (which I suspect must, on many if not most occasions, be the case) it's much easier to iron out the wrinkles in private so everything goes "smoothly" in public.   But now we're talking about politics and the legislative process in general as opposed to the specific cases where litigation is extant.

I'd be interested in knowing why you "remain sympathetic to the ACLU position in general." My guess is it's because you're focused on the end and not the means.

I'm happy to say, that it's, primarily,  about the means.     I truly believe that, unless there's some highly sensitive or high security matter at issue, that all deliberations/discussion/debate by public officials in re public policy/lawmaking should be on the public record.   And the even includes the "sausage making" kinds of compromises that are commonly required to come to consensus.    The people aren't stupid; they understand that compromise is part of a political process....let the terms and process of the compromising be public knowledge.  I suspect that policies and laws and the public good would benefit from such a practice.

But traditionally, the ACLU has always come down on the side of zealously maintaining the safeguards afforded by our Bill of Rights. That's why over the years they've represented criminals, Klansmen, and neo-Nazis.

Fortunately, in this case, the end result  (having the public be more fully informed about who is making decisions on public policy, and how those decisions are being arrived at) is something that all good people of good will can agree is highly desire-able; unlike the agendas of "criminals, Klansmen, and neo-Nazis" which all good people of good will find despicable.

It occurs to me that there are other instances in which people are not allowed to "speak freely" to each other:  

People with "inside" information pertaining to publicly traded stocks can go to jail for merely "talking".

Judges, and attorneys, are supposed to keep their mouths shut when discussing cases with the wrong people (for all manner of reasons).

I'm sure that y'all can come up with lots and lots of other examples where. "free speech" is lawfully curtailed for morally/ethically righteous reasons.

In any event, as I've said, the "final" (if not the ultimate) arbiter of these kinds of questions will be the SCOTUS.      (The ultimate arbiter is the body politic, which has indirect the power, over time, to even change the SCOTUS!)

Again, thank you so much for this opportunity to further clarify my views!

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by: Nick Lento @ Sat Dec 29, 2007 at 20:24:37 PM UTC

[ Parent ]

Don't agree (0.00 / 0)

Nick, your view of how public officials ought and ought not to interact with each other not only seems at once both cynical and Pollyannaish, but it's not even the way I would want to them interact.

When grappling with a difficult issue, these officials are no different than you or I. They need to hear different takes on the issue, and they need "sounding boards" as they work through their own position. Often they will talk to their constituents, sometimes they'll turn to their friends, and yes, sometimes they'll turn to a fellow official. This doesn't have to mean they are engaging in "ego/power trips" or looking for "opportunities to advance self serving ideological, and financial agendas over the public interest." It can mean they're doing the due diligence we want them to do. And the reality is, these little one-on-ones can be a lot more helpful than, say, a public workshop meeting where even there you'll often see more posturing than true deliberation.

I don't believe there IS "some kind of rule that prohibits" this, and furthermore I don't think there should be.

There would need to be an articulable probable cause, that would be sufficient to convince a judge.

Agreed. Whether it's phone records or private e-mail accounts, the party seeking access needs to be clear and specific about what they want, why they think it's relevant, and why they think the public interest overrides the individual right to be secure in one's papers, even if those "papers" are electronic. I haven't seen the ACLU's request, but it doesn't sound to me as if they've met that standard. I get the feeling they just think there might be something of interest, and so they'd like to drop their line in the water.

Your phrase "of all entities" implies that the ACLU would have some kind of special power/status that it doesn't (and shouldn't!) have.

No, it implies that I think they are acting out character. If you were a well-known champion of individual liberties and unexpectedly took a position at odds with that longstanding reputation, I would ask, "How could you, of all people, say that?"

Fortunately, in this case, the end result  (having the public be more fully informed about who is making decisions on public policy, and how those decisions are being arrived at) is something that all good people of good will can agree is highly desire-able

And if we have to bend the Fourth Amendment a little, so be it. You're focused on the ends, Nick. You just don't see any difference between the means and the ends.

In any event, as I've said, the "final" (if not the ultimate) arbiter of these kinds of questions will be the SCOTUS.

God help us.

P.S.Obviously, given the current ambiguity over the status of e-mail correspondence, it makes a lot of sense for all public official to refrain from using private e-mail for anything that touches on the issues that come before them. And I'm sure that's what the attorneys for all levels of government are telling their clients.

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by: EWO @ Mon Dec 31, 2007 at 14:12:31 PM UTC

[ Parent ]