The O’Collegian

OSU President Burns Hargis says he never spoke to Bill Self about taking over the Cowboy basketball program, but the campus would never know if he had contacted the University of Kansas coach.

Hargis uses his private BlackBerry to conduct university business, but he says the related text messages, e-mails and numbers dialed are not records open to the public.

However, advocates for government openness, along with a judge and attorneys general in other states, say records of public business should be open, regardless of whether the device that the created the record is privately owned.

Hargis said he elected not to receive reimbursement for his cell phone though his job requires him to be available 24 hours a day, making him eligible for a university-financed phone. Thus, records of his cell phone are not open to the public, university attorneys say.

Hargis’ phone is not the only cellular device outside of the scope of public inspection, according to OSU policy. The same holds true for the 493 employee cell phones on record at the human resource department, as well as an unknown number of other employee phones not documented at that office.

The university pays nearly $35,000 per month for these phones by adjusting employees’ salaries to offset the expenses of phones, records from the communications department show. A telecommunications official said the cell phone policy is based on convenience and practicality and may be used as a model at other universities.

OSU legal counsel contends that because employees retain ownership of their phones, records produced on the phones should not be available to the public.

But a district court in Texas and attorneys general in Texas and Ohio have indicated the substance of the message in question, not the ownership of the device that created the message, should determine whether a record is public.

Open government advocates decry OSU’s policy as dangerous, fearing it could pave the way for more government secrecy if ownership becomes the standard in determining whether a record is open.

The executive director of a government watchdog group called OSU’s policy “the silliest thing I’ve ever heard.”

“The whole point of the [open records] law is for our voters to hold our public figures accountable by having access to records that show what kind of job they’re doing,” said Peter Scheer of the California First Amendment Coalition. “It’s pretty clear that if you allow this as an exception — communications on a computer or a cell phone that is personal — then you could have the entire government completely circumvent the sunshine laws.”

In San Francisco, Mayor Gavin Newsom’s office is refusing to make public the text messages sent and received from Newsom’s private cell phone regarding an oil spill in San Francisco Bay in November. The mayor’s office will not release the records because the mayor, not the city, owns and pays for the phone.

Scheer disagrees with the mayor’s office, saying ownership of the device does not determine whether the record should be open.

“It doesn’t matter whether it’s received on a personal phone, by Pony Express or text message,” Scheer said. “The substance of the message makes it a public record.”

At OSU, attorney Doug Price says Scheer’s standard is asking too much of public employees. Ownership of the device, not substance of the message, should be the deciding factor when determining whether records are open, he said.

In the case of employee-owned cell phones, the university does not keep any records, he said.

“[The employees] own it; the phone bills go to them; they pay those phone bills,” Price said. “In that scenario, that’s just simply not a university record.”

But Scheer said the university does not need to house the record. If the employee who acts as an agent of the university has access to a record, then the university has access to it, he said.

“It doesn’t matter how communications happen,” Scheer said. “The technology is beside the point. The ownership of the device is beside the point. All that matters is the substance of the communication.”

Oklahoma Attorney General Drew Edmondson seemed to agree in 2002, saying, “Unless there exists a provision to the contrary, information coming into the possession of a public body or a public official or records generated by a public body must be subject to the Open Records Act.”

And in Ohio, a policy at the attorney general’s office states that “e-mail and instant messages are to be treated in the same fashion as records in other formats.” The policy requires employees to “copy their e-mails that relate to public business to their business e-mail accounts and retain them in accordance with applicable records retention schedules.”

“Documents in electronic mail format or sent via a hand-held communications device (such as a BlackBerry) are public records when their content relates to the business of the Office of the Ohio Attorney General,” according to the policy.

Hargis said enacting a similar policy at OSU would require too much time of employees.

Price said records of a phone call between university employees made on home phones should not be open to public and cell phone records should be no different. Price did not cite a statute or court case to support his analysis.

“That’s just my opinion,” he said. “We will just have to agree to disagree.”

Open government advocates contend the OSU policy violates the spirit if not the letter of the Oklahoma Open Records Act.

Oklahomans “are vested with the inherent right to know and be fully informed about their government,” according to the act. The purpose of the law is “to ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power.”

Price said he knows of no case law in Oklahoma that determines whether ownership of the device or the substance of the message is a better judge of a record’s openness.

Advocates of government transparency point to a court case in Texas to shed light on the issue.

In October, a district judge in Texas ordered Dallas officials to disclose e-mails the Dallas Morning News had requested more than a year earlier. The judge ruled the e-mails created on BlackBerrys and personal computers had to be made public “regardless of whether such e-mails passed through or were processed by City e-mail servers.”

A former Texas attorney general declared in 1995 that information is typically public when “it relates to the official business of a governmental body or is used by a public official or employee in the performance of official duties, even though it may be in the possession of one person.”

In 2005, Greg Abbott, the current Texas attorney general, ruled that correspondence a mayor maintained on his private business or personal e-mail accounts was subject to public disclosure.

“We find that the submitted documents and e-mails are addressed to members of the public or city officials and discuss official city business concerning the requested specified issues,” Abbott wrote. “Further, the mayor signs the documents and e-mails in his official capacity.”

Hargis, who began his presidency March 10, said he believes his personal cell phone should not be subject to open records law because he, not the university, pays for his phone.

“My background as a lawyer tells me that you’ve got two competing interests, as is often the case in law,” Hargis said.

Those interests are individual privacy and government transparency and any cell phone policy would be hard-pressed to balance those interests, he said.

Making private cell phone records available for public inspection is an invasion of privacy, Hargis said.

“We can’t even seem to get that law for terrorists,” he said.

Hargis said he was not familiar with all the relevant case law but added, “You’d have to look at a lot more than two court cases to determine what the law is.”

But an Oklahoma lawyer specializing in the First Amendment agrees with Scheer, not Hargis.

Attorney Bob Nelon of Oklahoma City said the real test should be “whether the cell phones are being used for public business,” not ownership.

“While I can see how arguments could be made on both sides of the issue, my take on it is that if the employees are conducting government business on the phones, then records regarding phone use should be public records regardless (of) whether the employee has purchased the phone in his or her own name,” Nelon said.

Michael White, the OSU telecommunications director, said the policy was created so employees could make personal and business calls from the same device.

White said it is inconvenient and impractical for OSU employees to carry two cell phones, but the executive director of the National Freedom of Information Coalition said a lot of employees in the public and private sectors carry two phones.

“I think all kinds of people carry two phones,” Charles Davis said. “It’s not terribly convenient, but it happens.”

Davis said the OSU policy is “troubling.”

“Whether the motivation was to skirt the sunshine law or the practical effect is to avoid the sunshine law, the effect is the same,” Davis said. “They’re setting up a system where the university-sponsored cell phone is beyond the scrutiny of open-records law.”

That system can be disconcerting, he said.

“[Open records laws] are important because they are the only means by which the citizens can provide oversight over their government,” Davis said. “Access to information is so critically important.”