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Can Smartphones Conceal Officials’ Dumb Comments?

Public officials who say something stupid or corrupt often don’t use their work computer.

The device du jour for sending incriminating or embarrassing messages has become the “personal” computer or smartphone.

Recent revelations of such incriminating or embarrassing e-mails by aides to Governor Chris Christie of New Jersey and Scott Walker of Wisconsin have shone a bright spotlight on the extent to which public officials are attempting to use “private” electronic devices to conduct public business, and to evade disclosure of their writings. The revelations also raise the issue of whether such e-mails and texts are covered by states’ public records laws.

In Wisconsin, newly-released e-mails showed that Gov. Walker’s aides did campaign business on government time. An investigation revealed that some of Mr. Walker’s aides while he was a county executive routinely used personal laptop computers, a non-county computer network, and private Yahoo and Google e-mail accounts to conduct campaign-related business while at work. His chief of staff forwarded a chain e-mail to undisclosed recipients that concluded, “I can handle being a black, disabled, one-armed, drug-addicted, Jewish homosexual on a pacemaker who is H.I.V.-positive, bald, orphaned, unemployed, lives in a slum, and has a Mexican boyfriend, but please, Oh dear God, please don’t tell me I’m a Democrat.”

Gov. Christie’s aides used various e-mail accounts while orchestrating lane closures in the George Washington Bridge scandal that has jeopardized Christie’s Presidential ambitions.

In California, a Court of Appeal in San Jose will hear arguments in a case March 11 which will decide whether officials’ e-mails on “personal” electronic devices are subject to disclosure under the state’s Public Records Act or Constitution.

San Jose officials, backed by the League of California Cities, argue that only records “prepared, owned, used or retained” by the city as a whole are subject to the Public Records Act. The plaintiff in the case, Ted Smith, backed by media outlets and open government groups, argues that the city can only act through its employees and officials, and that the content of the messages — not their location or the type of device on which a message is sent — should determine whether the messages are public.

The recent examples in New Jersey and Wisconsin — where top gubernatorial aides tried to hide wrongdoing by using personal smartphones and the like — underscores the importance of this case. Public officials shouldn’t be allowed to cover their tracks by the simple expedient of using their own smartphone to conduct shady government business or to electioneer at public expense.

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