On Wednesday I wrote about Milwaukee County Supervisor Peggy Romo West’s use of text messaging to fire her Legislative Aide. At the time I noted that Sup. West was playing “hard to get” when it came to answering very specific questions I had regarding the frequency of her use of text messages to conduct County business, and I added that I had filed an open records request regarding very specific text messages Sup. West sent regarding County business.
Today Sup. Romo West responded to my open records request with the following:
Mr. Wisniewski:The following is my response to your open record request, dated May 23, 2012.
Your open record request was for the following two items:
(1) Any and all SMS (text) messages sent from (414) 915-xxxx between the dates of 03/21/012 and 3/22/12 relating to “Ms. Perez” and Douglas Ditscheit.
(2) Any and all SMS (text) messages sent from (414) 915-xxxx on 03/31/12 regarding canvassing and a mailing.Please be advised that I do not have any SMS (text) messages on (414) 915-xxxx responsive to your request.
Despite rebuffing my inquiries and records requests, Sup. West can’t hide from the truth. From the evidence I have in my possession, which includes transcripts of text messages sent by Sup. Romo West, Sup. Romo West appears to have utilized text messaging quite frequently to engage in official County business. Her inability (or more likely, her unwillingness) to be transparent about her use of text messaging to conduct County business is quite simply disturbing, and it’s reminiscent of another attempt by Milwaukee County public servants to avoid scrutiny of their activities.
After all, if memory serves me there’s some sort of ongoing “John Doe” investigation in Milwaukee County that has uncovered the use of a secret internet network used by staffers of then-County Executive Scott Walker to engage in illegal activity on taxpayer time. Sup. Romo West’s use of text messaging in what seems to me to be an attempt to avoid scrutiny and transparency certainly seems more than a little odd, and it makes me wonder just how common it is for our elected officials to use similar methods to avoid public scrutiny.
Ultimately, Supervisor Peggy Romo West’s unwillingness to answer simple questions and to provide information that there must be a record of leaves me wonder what exactly she has to hide. What is Supervisor Romo West hiding from me, but more importantly, what is she hiding from her constituents and the taxpayers of Milwaukee County?
Unless it is a government owned cell phone, I am not sure that it is subject to open records requests. It is not like you can ask for all numbers called by her home number, even ones to County offices. An elected official is allowed to use private phones and computers to have incidental contact.
John, what do you consider “incidental contact?”
I ask because I’ve got dozens of text messages in which Sup. West directs her legislative aide to do something related to Sup. West’s official duties.
This is from the department of justice website
B. Record identification.
1. Electronically stored information generally constitutes a “record” within the meaning of the
public records law so long as the recorded information is created or kept in connection with
official business. The substance, not the format, controls whether it is a record or not. Youmans,
28 Wis. 2d at 679, 137 N.W.2d at 473.
a. E-mails and other records created or maintained on a personal computer or mobile device, or
from a personal e-mail account, constitute records if they relate to government business.
See Section IV.A.3.e., above.
b. Examples of electronic records within the Wis. Stat. § 19.32(2) definition can include word
processing documents, database files, e-mail correspondence, web-based information,
PowerPoint presentations, and audio and video recordings, although access may be restricted
pursuant to statutory or court-recognized exceptions. See Section VIII.E., above.
c. Electronic records include content posted by or on behalf of authorities to social media sites,
such as Facebook and Twitter, to the extent that the content relates to government business.
If an authority uses social media, the content must be produced if it is responsive to a public
records request. This includes not only currently “live” content, but also past content.
d. Wisconsin Stat. § 16.61, which governs retention, preservation, and disposition of state
public records, includes “electronically formatted documents” in its definition of public
records.
e. If an authority makes use of social media, or if employees use mobile devices to conduct
government business (whether the device is personal or provided by the authority), the
authority should adopt procedures to retain and preserve all such records consistent with
Wis. Stat. § 16.61 (state authorities), Wis. Stat. § 19.21 (local authorities), and applicable
records disposition authorizations.
f. Information regarding government business kept or received by an elected official on
her personal website,
It doesn’t matter where or what device she used it is considered a public record if the has to do with government business.
Number 2 on your request is clearly not subject to open records if it is her private phone because campaigning is separate. Now if it is a government cell then it is.
John, all the text messaging in question is being done from her personal cell phone during her “work day” regarding County-related business. From what I’ve been told, she uses text messaging to avoid creating an email paper trail for open records purposes.
If that’s the case, then you can argue until you’re blue in the face, doesn’t matter if it’s her “personal” phone or not, using it to conduct government business ends the discussion.
Correct, Locke.
It doesn’t matter if a pol is using a government computer or a home computer or a Starbucks computer to send email; it’s the account that matters, not the machine. If it’s using an official account, it’s public record.
Actually the guidance from the Wisconsin Legislative Council seems pretty clear that the account doesn’t matter either:
So it could be an elected official’s most secret personal diary, if they’ve chosen to record a piece of information documenting government business it would be subject to open records.
No, the open records law says that a “communication” is between two people, and that personal notes not shared with anyone else are not public records. Once you share them with someone else – they’re a record. Work on your drafts as much as you want, but once you circulate them, they’re a record.
Zach, please look through chapter 11 of the Wisconsin Statues it covers open records. Using a “personal phone” does not change the fact that if it’s government business it’s an “open record”. She is being non-responsive and may be in violation of the statue. It’s a forfeiture violation. She is responsible for maintaining the record in question and if she is intentionally violating the statue by deleting them that’s problematic for her. If she’s using the technology for government business she needs to give you the records when you request them.
John, I’m familiar with the Statutes in question, and I’m mulling over the possibility of filing a complaint against Sup. West with the District Attorney’s office.
I absolutely agree!
I’m not so sure that you’ll get much traction by requesting personal cell phone records. Many people delete their history when they start to run low on memory. If they don’t their phones may not work.
Zach does not care about that. This is about him going after a woman elected official again. No court in this country has ever said that a private cell phone text by an elected official is a public record and Zach knows this.
And apparently John does not care about elected officials conducting their business in a manner that puts them outside the scrutiny of open records requests, if those elected officials happen to be liberals. John must also think that setting up a private internet network to avoid the same type of scrutiny is okay as well.
As for you bringing up Sup. West’s gender, I’ll just note that has nothing to do with the discussion at hand, but I appreciate your attempt to insinuate that it does.
This is the second prominent woman elected official you have gone after on petty little issues and insinuate they are illegal when they are not. Your record speaks for itself.
And yes, sending a text message to an aide on a personal cell phone that the taxpayers do not pay for and setting up an extensive internet system withing a government office to enable people to campaign extensively on government time are different and for you not to the see the difference is frankly sad.
John, this isn’t a case of “a text message;” we’re talking about significant amounts of text messages being used to subvert open records laws. The fact that you’re defending such behavior tells me a lot about your views on open government.
As for your comments about Peggy’s gender, I’ve criticized a number of elected officials here over the years, both male and female – her gender has nothing to do with my concern over her use of text messaging to engage in official business.
Zach,
Please ignore John. Of course it’s a public record and her gender doesn’t matter one bit. Locke hit the nail on the head with “Whether a given piece of information is a “public record” and open to inspection depends upon its content, not its form or location.”. That’s actually a quote from http://legis.wisconsin.gov/lc/publications/im/IM2011_01.pdf. It’s clear that her choice to use a private phone doesn’t give her cover not to “save” her texts, facebook page etc. It’s not the device or medium it’s the message. Perhaps the Milwaukee County Ethics Board and DA would be a good course.
You are correct that if the communications are related to government business, they’re a potential open record per statute. This is no doubt an area where technology has out-paced the abilities of the average elected or appointed official or municipal clerk, though. To comply with open records requests of text messages, it will require someone with the knowledge and technology to be able to retrieve the text messages from the portable device to a form that can be manipulated by computer and delivered to you in electronic or printed form. Ideally, this would be in a threaded conversational form with time stamps. The records custodian would also need the opportunity to redact portions of the record that might be judged personal and non-business.
Multiply the problem by the many types of devices in use by public officials, and increase complexity by the fact that these may be personally-chosen devices, not ones approved and supported by the IT department. Of course, many government entities don’t have an IT department.
Recently, some municipalities have also faced the problem of elected officials using text messages, email, or other forms of chat during public meetings. Is this an illegal form of back-channel communication that violates the concept of an open meeting? What if the officials aren’t saving or are intentionally deleting their novel forms of communications?
Scott Walker comes into play here, too. Milwaukee County Supervisor John Weishan once requested the phone bills from Walker’s cell phone to see how he might’ve been communicating with real estate developers on a deal. Walker refused to surrender his records, saying he paid for his cell phone on his own dime. This is an interesting way to avoid openness. Certainly he was sometimes conducting County business on his cell phone. If the cell phone was paid by the County, the records would be open. Why weren’t his records open if he was using the phone for County business?
I still think you’re going to have a tough time proving that she’s intentionally subverting the system.
At the same time, the rise of smartphones has muddied the water and I’m sure someone will figure out a way to increase scrutiny of public officials.
But here’s the rub — a text message can convey much less than going out for a drink or two with a colleague. It’s not like there is a court reporter transcribing their chat. Plus, their actions, unless there is a quorum of supervisors present, is not public record either.
The point about the personal wireless network being brought in to intentionally circumvent the system and break a law is different and can be significantly more menacing.
Sorry, this doesn’t pass the smell test. It doesn’t matter if it is public or private account, if it is correspondence related to her job then it is a public record.
Quite frankly, however, I don’t think she has the brains to devise an elaborate plot to circumvent the system. I’d ask for an FOIA on her email account…it’s very likely that she can’t remember her email account password…or is too lazy to use her computer…or can’t figure out where the on button is located. That’s why she resorts to text messaging.
So what should the threshold be for text messages before they become a public record? A dozen, a hundred, a thousand? If it’s the primary way she conducts business with county employees–in Peggy’s case, she actually fired an employee using text message, then it would seem to me that it is a primary way she is conducting business.
I’m not sure how a smart phone muddies waters. Even a phone conversation can be brought up as a record, if she has to testify. Of course, it’s very easy to say “I don’t recall” to a conversation. However, with a letter, e-mail, or text message, it’s much more difficult to claim ignorance when you’ve created a written record.
All the blogger has done is request specific information regarding county business that was transmitted from her to a county worker. How is that not something that should be a public record?
Actually this is starting to sound more and more like a simple H.R. issue. If Supervisor West did not feel her Aide was being effective, she had the right to terminate his or her employment. An aide works at the pleasure of the Supervisor, not at the pleasure of him or herself.
I will also point out that aides come and go at the County Board for many reasons. Great aides are seen as a prize and get scooped up by other Supervisors in a short period of time.
FOIA requests can also be placed on all emails from an Aide as well. Of course if they use a server like gmail or yahoo it makes it difficult and maybe impossible to do a forensic search on the email unless a snooping software was installed previously by the county IT guys that would track it all.
Be careful with this one if you want to pursue it because these sorts of stories don’t get legs on their own. If Brian wants to pursue this to make Peggy look bad it may come back to bite him. I’m inclined to write the story the way it should be written but I don’t think Brian wants his name connected to this story from the angle that I’m hearing. Truth be told, I would make multiple phone calls and maybe a visit before publishing. In the end, you might be right and it could make Peggy look as poorly as this article portrays her. At the same time it may make Brian look very bad if there is more to it.
If this story was about West’s poor choice of how to fire someone was not classy, you wouldn’t get a disagreement from me. But I think it’s going further than that and it’s not passing the smell test anymore.
“FOIA” is Federal, not Wisconsin. Firewall-based “snooping” software won’t have any luck with “https:” encrypted web email, other than recording that someone was using it.
John, thanks for adding some clarity to the comment thread.
Actually I thought that Chairman Holloway made it emphatically clear that Legislative Aides worked at the pleasure of the Chair when he fired Supervisor Nikiya Harris’ LA!
Well, if you’re Peggy Romo West, you’re the Chair’s right-hand woman, so apparently you can fire at your pleasure!
And there’s the other baseless attack on the other woman elected official you like to hate. Stay classy.
John, I’m curious how me pointing out a fact is an attack on Marina Dimitrijevic. As First Vice Chair of the County Board, Peggy West is Marina’s right-hand woman….that’s a fact.
Get over yourself already.
While it is true that a Chair can fire any of the Supervisors Legislative Aides, I have never heard it done before Holloway overstepped normal decorum.
Supervisors hire and in some cases must fire their own Aides.
It seems to me that this is just another instance where she has denied access to the public. As open record law states “All persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers. In the past she had used her facebook to inform the public during committee times, yet she admittedly denied public access to the public. Just two days ago she has deleted all those public records, and started a new official account. Where did all those public records go Peggy. If they were done during committee time to inform the public about County happenings, why did you delete them…………they should be open to the public.