Three decades ago, when the states began to enact laws requiring public bodies to open the doors of their meetings and the drawers where they kept their documents, the wristwatch TV communicator was still just a futuristic idea in the Dick Tracy comic strip. Today, the chisel-jawed detective would use his Timex not only to call the office, but also to check his eMail and send graphic files of fingerprints from the crime scene. It seems like modern technology has the answer for just about everything.
But with all the new answers come many even-newer questions. When the possibilities seem unlimited, where are the limits? How does technology affect the ethics and the rules of public service and public institutions? How do school boards and other education policy-makers take advantage of the new technology without violating open meeting laws and exposing themselves to unnecessary criticism or expensive lawsuits for using computers to do a better job?
In a recent confrontation about the freedom of information statute in South Carolina, the Beaufort County school superintendent used a password-protected bulletin board to exchange information and comments with school board members. When challenged by the South Carolina Press Association, officials insisted that the information posted was "sensitive" (such as personnel matters) and was not subject to public disclosure. They also claimed that there was no "open meeting" violation, because the law requires that at least a majority of the school board be present to constitute a legal meeting. The law covers electronic meetings, preventing the board from using a conference telephone call to exclude the public, but whether the board used the internet to avoid conducting business in the sunshine is open to interpretation.
But would there be a legal problem with holding a board meeting online in a public electronic "chat room," where a quorum could exchange messages in real time? Is it enough that the internet is "open" to the public or is physical presence required? Is the internet really public, if not everyone has access to a computer? This was a point raised by some Bucks County, Pa., parents when the Central Bucks school board used the district web site to solicit comments on a tough redistricting decision. The board also held a public meeting where about two dozen speakers offered testimony. But that response was meager compared with the more than 500 comments posted online. Obviously, the internet is a far more convenient forum than a public meeting. As more and more parents gain access to computers, there will be increased pressure to use this tool to increase communication between school board members and their constituents.
It’s clear the old rules governing meetings and documents and public access are going to change. But how do you keep the critical editorials and lawsuits to a minimum while the state Legislature brings the sunshine law into the 21st century? First of all, remember that every state has different laws governing the conduct of school boards and other public bodies, so what might work in Colorado could be unlawful in Florida. Second, use common sense. While the internet is indeed revolutionary, it is just another form of electronic communication. If state law does not allow your school board to conduct business without notice and public participation, it doesn’t matter whether they meet on the phone or the internet … it violates the law.
School board meetings have been on television for years, and there is probably a school board somewhere that broadcasts meetings online, but the idea of government in the "sunshine" has not changed. It should not be difficult to add high-tech forms of notice and participation without excluding those who lack computers or simply prefer not to use them. When it comes to meetings, think of the internet as an enhancement rather than a replacement.
As for bulletin boards and web site feedback, there is probably more flexibility if you follow a few simple rules. If you take comments on your district’s web site, use the same rules that apply to comments received in the mail. In most cases, this means the comments are archived and made a part of the public record. It probably does not matter whether you simply receive comments via eMail or use a bulletin board with threads that allow users to read and respond to other users. The key is to let all users know that what they "say" in the forum is on the public record.
If your sunshine laws already cover electronic meetings and records, make sure your state attorney general provides some guidance on how the internet fits into the picture. If your laws are too old or vague to account for web activities, maybe it’s time to revamp the statute. And the next time you see a school board member talking into a wristwatch, check your schedule—you may be missing a board meeting.