Officials’ text messages can pose FOI dilemma

Thursday, April 24, 2008

When Detroit Mayor Kwame Kilpatrick began having an affair with his chief of staff, Christine Beatty, he probably never expected their explicit text messages to be published in the Detroit Free Press. The Free Press published some of those messages in January 2008, unfolding a scandal that has dominated Detroit headlines. Calls for Kilpatrick’s resignation have accompanied 12 official charges against him and Beatty of perjury, obstruction of justice, misconduct and conspiracy, filed by Wayne County prosecutor Kym Worthy on March 24.

The Kilpatrick story has brought to light a freedom-of-information issue courts have not had to address in the past. While government officials communicate electronically more frequently and through more media than ever before, e-mails, text messages, chat rooms, instant messages and video conferences all remain virtually unmentioned in FOI laws.

Text messages have exploded in popularity in recent years. The wireless industry’s trade association, CTIA, estimates more than 48 billion text messages are sent each month. Text messages have also become a flashpoint for discussion of FOI laws because they can be sent from either personal or state-owned cellular phones or beepers and may be personal or business-related in nature. The line between personal and public business can easily be blurred for government officials.

“Many states specifically provide that e-mails are public records. If e-mail on a work computer is a public record, then there is a good argument that a text message sent from a work phone also should be considered a public record,” said David Hudson, First Amendment scholar at the First Amendment Center. “I think it is a difficult issue because it is relatively new and many people regard text messages as private communications.”

The Free Press was unable to get access to Kilpatrick and Beatty’s messages through two FOI requests for documents related to an $8.4 million whistleblowers’ settlement that helped conceal their affair. The Free Press gained access to 14,000 text messages on Beatty’s city-issued pager from 2002 and 2003 through another source it hasn’t named. In January the newspaper published some of the messages in an investigative report that showed Kilpatrick and Beatty lied under oath at the whistleblowers’ trial.

On Jan. 3, the Free Press filed an FOI lawsuit against the city of Detroit in Wayne County Circuit Court to gain access to the text-messaging records, which it claims were being withheld. The Detroit News later joined the suit.

On March 28, Wayne County Circuit Judge Robert Colombo Jr. gave lawyers from the newspapers 90 days to determine if SkyTel, the city’s communications provider, could provide messages from the two pagers. Colombo also ruled March 21 that the Detroit City Council could enter into the lawsuit on the newspapers’ side, and on April 3, Colombo announced Beatty and Kilpatrick could join the lawsuit on the city’s side.

The mayor’s office contends the text messages don’t fall under public-information requirements because they were transmitted on a leased device, not on city-owned equipment.

The FOI lawsuit has already been to the Michigan Supreme Court and back. On Feb. 27, the state high court refused an appeal from Kilpatrick requesting that the whistleblower settlement records not be released. The court decided there are no exemptions for settlement agreements in Michigan’s open-records statute. A jury had agreed in September that former Deputy Police Chief Gary Brown and former Officer Harold Nelthrope suffered for blowing the whistle on alleged misdeeds within Kilpatrick’s security unit and extramarital trysts by the mayor. The $8.4 million came from the city of Detroit’s taxpayer-funded budget.

The state high court sent the case to Colombo, giving him the responsibility of releasing the confidential documents.

On March 21, Colombo said the portions of text messages left on Christine Beatty’s city-issued pager in 2002 and 2003, and any referring to Brown’s firing should be released.

The text messages were reported in January by the Free Press and appear to contradict sworn testimony given by Kilpatrick and Beatty in the whistleblowers’ trial when both said they had not had an affair.

Sam McCargo, an attorney who represented Kilpatrick during the whistleblowers’ trial, said April 10 that a lawyer representing Brown and Nelthrope held references to sexually explicit text messages over the city’s head to reach a settlement.

McCargo also said he expected an extensive investigation into the release of the messages by SkyTel.

City Council members have said they were not aware of a confidential agreement signed by Kilpatrick and containing references to the text messages when they approved the settlement amount.

The newspapers’ suit is not the only case in which Kilpatrick’s text-messaging records have been subpoenaed. After a party was rumored to have occurred at the mayor’s mansion in 2003, a 27-year-old stripper who allegedly danced at the party was found murdered. Tamara “Strawberry” Greene’s son’s father has filed a lawsuit on the child’s behalf alleging the mayor and the police department halted investigations of Greene’s death.

Though the mayor denies the alleged party ever happened, a 2003 internal affairs memo commissioned by Brown suggests otherwise. The reporting officer claimed Kilpatrick’s wife, Carlita, assaulted Greene after discovering the party.

Lawyers for Greene’s son have subpoenaed text messages from the day Greene died. A federal judge has ordered SkyTel to save messages from 42 city pagers, according to the Los Angeles Times.

The Associated Press contributed to this story. Melanie Bengtson is a junior studying political and economic development at Belmont University in Nashville, Tenn.