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IM feature on phones helps state sidestep open records law

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Thursday, Aug. 9, 2012, 11:57 p.m.

HARRISBURG — Trainers are telling state workers learning a new phone system that they can use an instant-messaging feature to avoid citizens' public record requests, the state's open records director told Gov. Tom Corbett in a letter.

“During several different training sessions for the implementation of the new statewide telephone system, state employees were specifically instructed that certain telephone messages and instant messages on this system are not subject to the state's open records law,” wrote Terry Mutchler, executive director of the Office of Open Records. It happened in at least four training sessions, she said.

In general, phone records are covered by the 2008 law, Mutchler wrote.

But “there's no way to retain” so-called instant messages, which are intended for “quick, routine communications,” said Dan Egan, spokesman for the Office of Administration, an agency under Corbett.

Under the law, only “obtainable” records are subject to public release, said Melissa Melewsky, attorney for the Pennsylvania Newspaper Association.

Use of technology to circumvent the law would violate the spirit of Pennsylvania's Right to Know Law, several First Amendment advocates said.

“It's a completely inappropriate way to use technology to avoid accountability,” Melewsky said. “It invites abuse.”

Egan would not specifically say whether workers have been told in training that instant messaging is a way to avoid Right to Know law requests. Instructors stick to a slide presentation and answer questions only about “features and functionality of the phones and technology,” he said.

“We are training nearly 57,000 employees on the new phone system,” Egan said. “I cannot vouch for what transpires in every single class; I can only tell you what information is supposed to be presented to employees and what I have witnessed in training myself. I have not seen the letter you are referring to, but if there is incorrect information being conveyed to employees, we are of course very concerned and will take immediate steps to correct it.”

Mutchler did not return phone calls on Thursday.

The training overseen by the Corbett administration is the latest example of government officials potentially using technology to circumvent state and federal disclosure laws. In New York, Gov. Andrew Cuomo's aides send untraceable messages on BlackBerry phones, according to The New York Times. House Republicans complain that White House aides in the Obama administration conduct business on personal email.

“This is an important issue, and we are seeing it arise all around the country,” said Kenneth F. Bunting, executive director of the National Freedom of Information Coalition based at the University of Missouri. “With email becoming the prevalent means of written communication, the lengths and machinations to which some government agencies will go to hide them from public view are mind-boggling and disturbing.”

There is another side, however, said Tom Baldino, a political science professor at Wilkes University in Wilkes-Barre. In a democracy, a delicate balance exists between officials having flexibility in decision making and the public's right to know, he said.

Concerns that extreme options considered during decision making would later be second-guessed if records are revealed may “cast a pall over the decision-making process,” Baldino said.

Governors and lawmakers want advisers to present options without fear they will be thrown back at them during re-election, he said.

Legislative fights over electronic records, including emails and text messages, have surfaced in New Mexico, Iowa, Kansas and Utah, Bunting said.

Pennsylvania law “requires access to electronic records,” said Kim de Bourbon, executive director of the Pennsylvania First Amendment Coalition. “There's no mandate that records be kept.”Legislators need to update open records laws such as the one in Pennsylvania to keep up with technology, de Bourbon said.

Egan cited training materials saying that only authorized users may use the IM technology within the state system.

“Remember, it is the content and business value of a communication, not its format that determines its status as a record or non-record, as well as whether the record is transitory or has lasting value,” employees are told. Email should be used for producing “records of lasting value.”

The new phones utilize voice-over-Internet technology, Egan said.

Phones are being replaced under a seven-year, $65 million-a-year contract with Verizon, signed under former Democratic Gov. Ed Rendell. It remains in effect through 2016. Savings will be realized through the new technology rather than existing phone lines, Egan said.

Brad Bumsted is state Capitol reporter for Trib Total Media. He can be reached at 717-787-1405 and

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