Anything written down is deemed a public record; everything else is not. But increasingly it’s not all that sensible a distinction, especially with today’s evolving technology.
The Globe recently asked Boston Mayor Michelle Wu and city councilors to release copies of their texts. No way, came the reply. We never text anything work-related. Just dinner plans with the spouse.
I don’t believe that, and I expect few do. Texting is so ubiquitous — and has become such a common substitute for what used to be done by telephone — that it’s hard to imagine that any of the 14 elected politicians involved keep such a bright line between their personal and political lives. Indeed, for most politicians, getting elected means all of life becomes political; it essentially is a 24/7 job.
I’m glad the politicians didn’t release their texts. Maybe what’s wrong here is not the behavior of the politicians but rather the rules that say anything as pedestrian as a text should be deemed a public record.
Public records laws draw a sharp distinction between the written and the spoken. Anything written down is deemed a public record; everything else is not. But increasingly it’s not all that sensible a distinction, especially with today’s evolving technology.
Imagine two pols having a conversation: “I’ll vote for the budget if you make sure my district gets a new substation.” Clearly not a public record. Two pols on the phone saying the same thing? Also not a public record (but, weirdly, it is a public record that such a call occurred — since phone companies keep written records of numbers dialed). But if one politician dictates the same words in a text to the other? Supposedly that’s a public record but — really? Just because technology allows the spoken to be converted into the written, does that suddenly make something so conversation-like into a public record? Or, to use another example, suppose two politicians are talking by phone but one is deaf, using a transcription device such as RogerVoice. Are the non-hearing politician’s conversations now public records even while the hearing politician’s conversation is not?
The purpose of public records laws (and their close cousin, open meetings laws) is to prevent government from operating in secret. Laws and regulations must be available to all. Votes by governing bodies must be conducted in public. But these rules weren’t intended to be voyeuristic, inhibiting open communication among politicians.
An old-school Boston politician, Martin Lomasney, is credited with this advice: “Never write if you can speak; never speak if you can nod; never nod if you can wink.” One interpretation of his adage is that it’s a method for avoiding scrutiny of the nefarious.
But another way of looking at it is that politics — much like sausage-making — is a messy business, full of compromises and deals. Politicians need to be able to talk bluntly and openly with each other. That’s the way folks with different ideologies and principles can get together and actually get something done. But if all of these conversations were suddenly subject to public scrutiny, where every word, written or not, is available for all to see? Then the communication stops.
That may be good for the ideologues of the world — those who would never accept any deviation from their own gospel. But for those of us who think compromise and negotiation are the way that politics moves a city, a state, and a nation forward, it would be disastrous. Communications that are conversation-like — such as text exchanges, e-mails, Slack messages — should be treated as conversation. In light of advancing technology, public records laws need to be rethought and scaled back.
This column appeared in The Boston Globe on March 9, 2023 at https://www.bostonglobe.com/2023/03/08/opinion/texts-between-boston-politicians-shouldnt-be-public-record/.