LMR June 2023 FINAL

LEGAL BRIEFS
#It’s Complicated
The growth of internet-based technology
has enabled municipalities to conduct
business with increased efficiency
and speed. Document filings that required
multiple parties shuffling stacks
of paper are now managed through
online portals; training mandates that
meant traveling to a conference may
now be completed 24/7 online; and as
discussed in this issue, social networking
tools empower municipalities to
maximize public communication. With
so much focus on securing affordable
and reliable internet statewide, this
trend is destined to continue.
Unfortunately, online tools also create
challenges for public bodies in complying
with longstanding provisions in
state laws and the Constitution.
Both the Public Records and Open Meetings
Laws in our state were enacted in
the 1970s. Despite numerous amendments
since then, neither comprehensive
framework has been adjusted to
adequately accommodate modern
technologies. In short, applying PRL and
OML mandates to technology-based
transactions is problematic.
The Public Records Law defines certain
records as subject to public disclosure. It
generally does not base those definitions
on where or how the records are kept. If a
record is public, it does not matter whether
it is a hard copy, embedded in an email,
part of a text thread, or linked through a
public body’s social media presence. It
matters what it is, not where it is.
But the PRL was written at a time when
printed records were the only option.
Most public bodies have enacted policies
to capture, retain, and reproduce
email communications and electronically-stored
documents; but many struggle
with text messages and social media
data. There are myriad software resources
to assist municipalities in dealing with
electronic records. Whatever the strategy,
it is important that each municipality
have a promulgated plan in place and
that it be consistently followed.
For example, municipalities may require
that all employees, under penalty of discipline,
provide access to their devices
when necessitated by a public records
request. Similarly, a custodian may be
relieved of liability if municipal officials
have agreed to indemnify the municipality/custodian
for failing to provide all
responsive records in their possession.
When the Open Meetings Law was
written, in-person gatherings were the
only option for public meetings; and for
nearly 40 years, there was no momentum
behind alternative meeting methods.
Then the global pandemic changed
everything.
In 2020, the Legislature enacted La. R.S.
42:17.1, which enabled remote meetings
of public bodies during declared
emergencies or disasters. This year, the
Legislature debated expanding remote
meetings to accommodate disabled
members of the public, as well as disabled
members governing bodies.
From another perspective, technology
is causing increasing complications
in OML compliance. If a quorum of the
body is conducting public business, it
must be done at an open meeting. This
mandate applies whether members are
gathering in person or conferring using
email, group texting, or social media
apps. So, board/council members
should exercise due caution when deliberating
with a quorum of the body electronically,
since it is what they are doing
that matters, not how they are doing it.
The First Amendment is often invoked
when discussing online platforms, and
we could write entire treatise on governments
using emerging technologies.
Social media posts, virtual town halls,
and podcasts are all examples of how a
municipality can harness technology to
amplify its voice and message. The “Government
Speech Doctrine” states that although
Free Speech limits government
regulation of private speech, it does not
apply when the government speaks for
itself. But municipalities must be careful
to separate the two.
If a municipality allows one person to comment on
a post, it generally must allow everyone to do so,
even if the government disagrees with the content,
as that is no longer government speech.
A municipal social media page is a good
example. The municipality controls content
because it is their page, their speech;
and they need not allow anyone else to
post on that page. But if their settings
allow the public to comment on their
posts, 1A protections may come into
play. If a municipality allows one person
to comment on a post, it generally must
allow everyone to do so, even if the government
disagrees with the content, as
that is no longer government speech.
For municipalities tackling the application
of age-old laws to modern circumstances,
it is essential to rely on the advice of their
municipal attorneys, who are positioned
to consider every detail and provide legal
guidance on how to proceed.
by Karen Day
White
LMA Executive
Counsel
White is a member of the LMA Legislative
Advocacy Team and can be reached at
kwhite@lma.org.
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LMR | JUNE 2023