February 22, 2018
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Are Maine government workers using text messages and mobile devices to skirt open-records law?

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By Scott Thistle, Sun Journal

AUGUSTA, Maine — Some state workers and elected officials are using mobile phones and other electronic devices to skirt the state’s open-records law, according to a federal whistleblower who says she was instructed in the method of secret messaging by a top-ranking boss in state government.

During sworn testimony Friday before the Legislature’s Government Oversight Committee, Sharon Leahy-Lind, a former employee of the Maine Center for Disease Control, said she was instructed by superiors to use text messages because the messages were undiscoverable under the state’s Freedom of Access Act.

Leahy-Lind’s former supervisors, also under oath, refuted her testimony Friday.

Meanwhile, the state’s public records ombudsman confirmed that while the messages between state workers on state-issued phones should be public under state law, they are not retained by the state. Instead, those records are kept by the cellphone company, which could put the messages beyond the reach of open-records requests.

“If a text message is received or prepared for use in connection with the transaction of public or governmental business or contains information relating to the transaction of public or governmental business and is not deemed confidential or excepted from the FOAA, it is a public record,” Brenda Kielty, the state’s public access ombudsman, wrote Friday in an email to the Sun Journal.

State law requires disclosure of public records, including written and electronic communications between state workers and others considered public officials. But the state does not keep text messages sent by state employees or public officials.

Viewing any text messages sent by state employees would likely require a federal subpoena as mandated by the Stored Communications Act. But the act only authorizes the release of text message transcripts for the purpose of law enforcement and requires consent.

In a recent case involving U.S. Cellular in Maine, Supreme Court Justice Donald Alexander wrote the federal act “included no exception for authorizing text message content disclosure based on a civil discovery subpoena.”

Alexander criticized the phone company for handing over the text messages to an attorney in a divorce case, citing the federal law that says the content of text messages cannot be released except for law enforcement purposes without the consent of the sender or recipient.

To obtain the content of text messages, law enforcement must, in most cases, get a search warrant and present it to the cellphone service provider.

“The Stored Communications Act includes no exception authorizing text message content disclosure based on a civil discovery subpoena,” Alexander wrote.

Unlike state email accounts, which are maintained by the Office of Information Technology on servers owned by the state, text messages sent on a state-issued Blackberry or other mobile device are retained by the phone contractor, which in Maine’s case is U.S. Cellular.

According to John Martins, a spokesman for the Department of Health and Human Services, some employees are issued mobile phones to conduct state business.

Martins said he could not immediately produce a list of DHHS employees who were issued mobile phones with texting capabilities. He also said he was unsure whether employees at the CDC were issued text-capable phones.

The texting feature is an additional cost and would have to be added to the state’s contract for each phone, he said.

“If a (mobile device) is used for email messages, those messages are stored within the state’s exchange system, like any other email generated by an employee,” Martins said in an email.

According to the state’s policy, mobile phones are only issued to employees if their job requires field work where landline phones are inaccessible or inefficient, if they are required to be on call or they travel frequently and need to be accessible.

Adrienne Bennett, Gov. Paul LePage’s press secretary, said she and Peter Steele, the governor’s communications director, are exploring the issue with regard to the governor’s office communications policy.

“Technology changes rapidly and we as an administration are committed to abiding by the law with regard to FOAA,” Bennett wrote in an email message. “Sometimes, the technology moves faster than we can implement the policy, however. Nonetheless, we are discussing ways to address this matter and are confident the majority of state employees are using state-issued devices appropriately and accordingly.”

Still, it remained unclear Monday how many state employees had text-enabled devices and to what extent they were being used for government business. A request to the state for details on which state employees had text-enabled phones was still being considered Monday, officials said.

Lawmakers on the Government Oversight Committee said Monday that while the testimony they heard on how text messaging was being used to avoid FOAA at the CDC was conflicting, they are concerned the potential exists to avert public access laws with state-issued mobile devices.

“The idea that we may allow a shadow communications system to exist in state government is deeply troubling,” said state Sen. Emily Cain, D-Orono, the Senate chairwoman of the GOC.

She said that FOAA law has been amended in the past to reflect emerging communications technologies — such as when email became a dominant method of business communications in the late 1990s.

“This is probably the next frontier of transparency in state government,” Cain said. “Because text messaging can make life a little easier, a little quicker, it can be an easy and straight-forward way of communicating, but if that’s done at the expense of public access or it’s being used intentionally to avert the public’s eye, then we have another real problem on our hands.”

Cain’s Republican counterpart on the committee, Sen. Roger Katz of Augusta, said that the nature of texting technology may make retention of text messages for public disclosure more difficult. But Katz agreed that the notion of using texting to subvert the state’s open records law was troubling.

“At least one witness was suggesting a concerted effort not to leave a paper trail of how decisions were being made and that’s problematic,” Katz said.

Cain said Monday she believed the issue of using text messages to conduct state business would become a topic for the Government Oversight Committee in the weeks ahead.

The committee next meets on Friday, March 28.


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