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Guest Column: The 2010 Agenda: Open Government

Compared with other states, Texas alternates between merely OK and downright bad in rankings of how transparently government bodies conduct open meetings and respond to requests for public information. But we can fix that.

By Wanda Garner Cash
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Count the smart phones in Capitol corridors. Check Facebook and Twitter to “follow” your favorite elected official. Watch city council members on the dais texting during meetings. What are they saying? And is it any of our business? Of course it is.

The explosion of social media constitutes a radical shift in the way we communicate. Erik Qualman, writing in Socialnomics, says it’s the biggest cultural shift since the Industrial Revolution. Unfortunately, current state law doesn’t address the communication transformation that has made the Facebook population the fourth-largest country in the world. And because of this legislative technology gap, the public is left wondering what government business is being conducted on social media and what we’re missing.

During their off-season, Texas lawmakers keep busy with interim charges, which are like practice sessions for the upcoming legislative session. We should be pleased that, alongside property taxes and eminent domain and the plight of feral hogs, transparency and public access made the suggestion list in two committees: State Affairs and Government Organization. This means that Texans could finally see some modernization of laws in these areas, which haven’t had a major overhaul since 1999.

One study suggestion asks the State Affairs committee to consider whether technological advances and social media might affect how government officials communicate, and whether the existing laws still guarantee the openness and transparency originally intended. Indeed, 2010 finds the Public Information Act mired in obsolete language, with only drive-by nods to e-mail correspondence and electronic data. No mention of social media; no meaningful acknowledgment of digital transparency.

Compared with other states, Texas alternates between merely OK and downright bad in rankings of how transparently government bodies conduct open meetings and respond to requests for public information. Part of the poor showing can be blamed on confusion and lack of clarity about how digital communication and record-keeping fits into existing law.

Here’s a short list of top priority updates to open-government laws:

* Add new definitions that encompass wireless-transmission devices and social media.

* Allowing for existing exceptions, specify that all e-mail communication sent through government servers should be considered public — regardless of who owns the electronic device, computer, BlackBerry or cell phone.

* Clarify that all e-mail discussing official business is public, whether it's sent on a private device, on a private account or through a private server.

* Standardize the records-retention rules across all government bodies. At the moment, each state agency can determine how long to keep data. With virtually infinite digital storage capacity, it’s hard to understand why the governor’s office is deleting e-mails after seven days.

* Make it clear that privatization of government functions does not exempt compliance with the Public Information Act. Voters need access to privatization costs when government entities outsource their functions to third-party vendors. The continuing debacle with IBM and the Department of Information Resources is a notorious example of lax accountability. The same cost provisions should apply to private companies in producing information requested under the Open Records Act as apply to governmental agencies.

* And while the committees are studying how to gain digital transparency, why not require public agencies to report their performance on open government? For example: a year-end tally of how many open records requests were received, how many attorney general rulings were sought and how many disclosures were made with and without the attorney general's intervention. Perhaps even provide a penalty for recalcitrant government bodies that stall disclosure by asking for the attorney general's rulings on information that has been previously ruled public.

Texas lawmakers would be revolutionary heroes if they would update the open government laws and drag them tweeting and IM-ing into the 21st century.

Wanda Garner Cash, the Griff Singer professor of journalism at the University of Texas, is a past president of the Freedom of Information Foundation and the former editor and publisher of The Baytown Sun.

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