Mayor Jean Stothert isn’t sure if she’ll comply with a letter from the Nebraska Attorney General’s Office directing the City of Omaha to produce the mayor’s text messages as public records.
Stothert said she will consider a recommendation from City Attorney Paul Kratz to again reject a request from The World-Herald to review text messages. In that case, the newspaper would have to sue the city to obtain the records.
Still, Stothert said, she stopped sending text messages about city business after The World-Herald raised questions about the practice.
Assistant Attorney General Leslie Donley, in a disposition letter Thursday, sided with the newspaper in its effort to obtain Stothert’s text messages. Donley also raised questions about the city’s lack of a policy about retaining public records.
“The question as to whether text messages are public records is, to us, not a hard question to answer,” Donley wrote. “It seems to us the bigger issue is how will the City provide meaningful access to all public records for citizens.”
Stothert and Kratz said separately that they plan to meet and decide how to respond.
Stothert said she has not had a chance to talk with Kratz. “I would leave that up to the city attorney to advise,” she said.
Kratz said Friday he disagrees with the attorney general’s conclusion.
“I think this is an interesting and unique case that probably deserves a decision by a court,” he said.
World-Herald Executive Editor Mike Reilly said he is pleased with the attorney general’s letter. He said he hopes the matter doesn’t come to a lawsuit.
“The ruling affirms that, with limited exceptions, government agencies must conduct the public’s business in plain sight,” he said. “The principle of transparency is the same regardless of what technology officials choose to use.”
Omaha’s elected officials have increasingly used text messages on their private cellphones to conduct city business and discuss city issues and matters before the Omaha City Council. Stothert, in particular, has been a frequent texter.
Stothert previously said she deletes text messages and email at the end of each day as a matter of convenience. She said Friday that she sent a letter to her cellular carrier, Verizon, to determine whether those deleted texts could be retrieved to comply with the attorney general’s letter.
She said she uses her personal phone because she doesn’t have a city-issued cell phone.
After The World-Herald asked the attorney general to intervene, Stothert said she welcomed clarification from the attorney general about text messages. She said she wants any rules to apply to all government officials.
Following World-Herald articles about Stothert’s texting, the mayor said she planned to issue an executive order that addressed texting, emerging technology, public record requests and some other related issues.
Stothert said that order is mostly ready, and she was waiting for the attorney general’s letter before issuing it. She said it’s important to clarify the issues.
“I would think right now a lot of people are scratching their heads, saying, ‘What do we do? What is right? What is wrong?’” Stothert said.
Council members Pete Festersen, Ben Gray and Rich Pahls said they’re happy with the attorney general’s letter.
“I believe texts regarding city business should be considered public information and treated as such,” Festersen said. “That’s always been my assumption, and the attorney general opinion confirms that position in no uncertain terms.”
Several council members expressed concern about the possibility of going to court over public records.
“To go to court over this is a waste of taxpayer money,” Gray said. “It’s a reflection to me that even though we talk the talk of transparency and accountability, that office is not walking the walk.”
Councilwoman Aimee Melton said that after The World-Herald raised the issue, she decided she would preserve all her city-related text messages by sending them to her city email. That way they would be available to the public.
However, Melton said she hasn’t texted city business since then.
The World-Herald requested last month to review text messages between Stothert, council members and department heads between March 23 and April 13. It also requested all city-related text messages to or from council members.
Stothert offered to show a World-Herald reporter her text messages from April 16 in an interview that afternoon. Most City Council members also agreed to allow the newspaper to review their text messages from March and early April.
The text messages showed that the mayor, and to a lesser extent council members, regularly text about city business. In fact, Stothert and three fellow Republican council members shared a group text in which she lobbied the council members and reacted to a public hearing during a council meeting.
In upholding the newspaper’s arguments that text messages are a public record, the Attorney General’s Office noted it has long held the position that government-related emails sent through private email addresses are public records. Donley wrote that text messages are not “so different that they demand a different result.”
She rejected several legal arguments from the city, including an assertion that public access to government-related text messages would infringe on officials’ right to privacy.
“There is no right of privacy for matters that are not private,” Donley wrote.
Donley said she is “troubled” that the City of Omaha doesn’t have a formal policy regarding record retention. The city is exempt from the state law that specifies how long government entities must retain public records.
Some city departments have policies on document retention.
“We are troubled by the notion that the City’s exemption from the Records Management Act seemingly absolves them from the duty to adopt a policy related to the orderly retention of the records at issue here, or any other records,” Donley wrote.
Stothert said she agrees with the need to standardize document retention across the city and plans to issue a citywide policy on that issue as well.
“We don’t have one now, and that does concern me,” Stothert said.
She said that because there’s no single policy about document retention, she felt comfortable deleting text messages and emails. Emails, unlike text messages, are automatically captured and stored by the city.
Several council members said they, too, believe the city should enact such a policy.
“It should not be by department,” Councilman Franklin Thompson said. “That’s not efficient at all. It’s got to be one way or another.”
Said Donley, “While we cannot dictate to the City what an appropriate retention schedule may be, we would suggest that it be adequately structured to allow citizens and other interested persons the opportunity to access public records.”
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Video: Mayor Stothert on public records status of text messages, April 30