Transparency trumps technology: reconciling open meeting laws with modern technology.

• Author: Roeder, Cassandra B.

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND A. Open Meeting Law Definitions B. Goals of Sunshine Laws 1. Transparency 2. Public Participation 3. Efficiency C. Modern Technology II. EMBRACING TECHNOLOGY A. Providing Information and Soliciting Feedback B. Remote Participation III. AVOIDING TECHNOLOGY A. Interactive Online Forums 1. Transparency 2. Efficiency 3. Public Participation B. Group E-mails and E-mail Forwards 1. Transparency 2. Public Participation 3. Efficiency C. Responses to Counterarguments IV. COMPETING GOALS: BALANCING TRANSPARENCY WITH PUBLIC PARTICIPATION AND EFFICIENCY A. Necessary Sacrifices 1. Public Participation 2. Efficiency B. Valuable Gains CONCLUSION INTRODUCTION

As technological advances revolutionize communication patterns in the private and public sectors, government actors must consider their reactions carefully. Public representatives may take advantage of modern technology to improve communications with constituents and to operate more efficiently. (1) However, this progress must be made with an eye to complying with certain statutory restrictions placed on public bodies.

open meeting laws require that certain governmental bodies discuss and decide matters of public interest at planned, advertised meetings in full view of the public. (2) Most open meeting statutes, however, have not been updated for many years and thus fail to instruct public bodies on how to square their provisions with modern technology. (3) As a result, many government actors struggle to comply with open meeting statutes when attempting to use available technology to benefit themselves and their constituents. (4)

Legal scholars have noted the difficulties inherent in applying the restrictive provisions of open meeting laws to advances in technology. (5) Some argue that the benefits to be gained from public bodies' utilization of technology, particularly interactive online forums and group e-mails, outweigh potential harms. (6) These scholars conclude that, if these technologies do not comply with existing laws, lawmakers must amend open meeting statutes to allow for their use. (7) This Note contributes to existing legal scholarship by providing a concrete proposal for public bodies' use and avoidance of available technologies while preserving the primary goal of open meeting laws: transparency.

This Note will argue that, in order to comply with the spirit and the letter of open meeting laws, public bodies should limit use of modern technology to: (1) providing information and soliciting public feedback through noninteractive websites, and (2) enabling remote participation of public body members at meetings. This Note will then contend that public bodies should not utilize interactive online forums or group e-mails. Although these technologies may offer certain obvious benefits, this Note argues that: (1) they do not comply with current open meeting law requirements, and (2) legislatures should not alter open meeting laws to allow for their use. (8) It concludes that although more permissive statutes might lead to an increase in civic participation and government efficiency, these potential gains must be sacrificed in order to preserve transparency, the primary purpose of open meeting laws. (9)

Part I explains the circumstances under which open meeting law requirements apply. It also considers the goals legislatures hope to accomplish by enacting these laws and introduces the new technologies that must be squared with unclear statutory requirements. (10) Part II proposes two ways public bodies can and should utilize modern technology to further the goals of open meeting laws without risking noncompliance. Part III then argues that interactive online forums and group e-mail usage are bound to conflict with legal requirements and that legislatures should not alter public meeting laws to allow for their use. Finally, Part IV considers how these proposals accomplish the underlying goals of open meeting laws, arguing that, in order to achieve the primary open meeting goal of transparency, the secondary goals of public participation and efficiency must be partially compromised.

1. BACKGROUND

   All states, as well as the federal government, have enacted open meeting laws. (11) This Part introduces certain foundational elements of these laws. Part I.A first identifies the definitions relevant to the interpretation of open meeting laws. Part I.B then discusses the three goals driving these laws: government transparency, public participation, and efficiency. Next, Part I.C introduces forms of modern technology that present possibilities for improved functioning and highlights the obstacles to compliance for public bodies seeking their use.

   1. Open Meeting Law Definitions

      Interpretation and application of open meeting law requirements begins with statutory definitions of the terms "public body," (12) "meeting," (13) and "deliberation." (14) Although state open meeting laws vary, they generally define these concepts in similar ways. (15)

      Public bodies are government entities subject to open meeting law requirements. (16) They typically include governing boards, committees, subcommittees, (17) and elected bodies with decisionmaking abilities (18) at the state and municipal level. (19) Some states require that government entities have more than one member in order to fall within the definition of public body. (20)

      A meeting is a gathering of a quorum of a public body--often defined as a simple majority--where issues within the public body's jurisdiction are discussed. (21) Some states deem any gathering of public officials where public business is addressed to be a meeting, even when less than a majority is present. (22) Most sunshine laws carefully prescribe the circumstances under which a public body may meet in closed session, requiring that all other meetings be made open and accessible to the public. (23) Some state laws also address physical presence requirements of public body members at meetings. (24)

      Meetings must be planned so that the public body can give advance notice of the meeting's time, location, and anticipated topics of discussion to the public. (25) Open meeting laws thus prescribe the manner in which proper notice of meetings may be given. (26) During and after meetings, accurate minutes must be taken, approved by the public body, and made available to the public upon request. (27)

      Deliberation constitutes discussion of matters within a public body's jurisdiction, among at least a quorum--the minimum number of public body members required to constitute a meeting. (28) Deliberation is distinct from a mere chance meeting or social gathering at which jurisdictional matters are not discussed, even if a quorum of a public body happens to be present. (29) Public bodies are thus subject to open meeting law requirements when holding meetings, where a quorum of a body deliberates over matters within its jurisdiction.

   2. Goals of Sunshine Laws

      Sunshine laws are enacted with three main purposes: transparency, public participation, and efficiency.

      1. Transparency

         Government transparency is the primary goal behind open meeting statutes, as evidenced by judicial interpretations of the guiding statutory language in many states: "[Transparency can, it is said, reduce corruption, bribery, regulatory capture, and other forms of governmental misbehavior." (30) The Florida Supreme Court characterized the purpose of sunshine laws as "preventing] at nonpublic meetings the crystallization of secret decisions." (31) Using similar language, the Massachusetts Supreme Judicial Court held: "The open meeting law is designed to eliminate much of the secrecy surrounding the deliberations and decisions on which public policy is based." (32) Transparency requires not only the mere avoidance of secret discussions, but also accountability to members of the public for policy decisions; for example, the purpose of the Ohio Open Meeting Law "is to assure accountability of elected officials by prohibiting their secret deliberations of public issues." (33) Thus, transparency is widely cited as the primary purpose of sunshine laws.

         Practitioner Teresa Pupillo argues that state legislatures should include a purpose provision with open meeting laws, to make clear that they exist "to ensure that governmental business is open to the public." (34) Some states have done just that. Under the section titled "[legislative findings and declaration," Pennsylvania's Open Meetings Law states that "secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society." (35) Pennsylvania thus describes the scenario it seeks to avoid, (36) whereas Nevada explains its desired outcome. (37) The "legislative declaration and intent" section of Nevada's Open Meetings Law states, "It is the intent of the law that [public bodies'] actions be taken openly and that their deliberations be conducted openly." (38)

      2. Public Participation

         Encouragement of public participation is often cited as another important goal of open meeting laws. (39) The Florida Supreme Court explained, "As more people participate in governmental activities, the decisionmaking process will be improved." (40) For this reason, public participation is a highly valued component of democratic governance, (41) and it frequently receives careful consideration as lawmakers draft and revise sunshine laws; for example, the Court of Appeals of North Carolina stated that "the legislature's purpose for [the Open Meetings Law] is to ensure that public bodies receive input regarding the substance of the public body's actions." (42) Yet many sunshine laws allow public bodies to impose limits and restrictions on public participation.

         For example, although some states protect the public's right to speak at open meetings, many do not require that meeting attendees be given an opportunity to express opinions or ask questions...