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Textsaren't public, city attorney says

Textsaren't public, city attorney says

Stothert says she'll keep sending messages, while one City Council member says he'll switch to city email instead

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Textsaren't public, city attorney says

Jean Stothert "My feelings on it haven't changed. ... I'll still do it because it's more convenient."

Omaha Mayor Jean Stothert said she plans to continue to use text messaging after City Attorney Paul Kratz issued a legal opinion that text messages are not a public record.

At least one City Council member, however, said he plans to use email more often after The World-Herald raised questions about city business being conducted through texts on private cellphones.

Unlike city emails, text messages on private phones are not tracked and preserved as official public documents.

Kratz, in response to a World-Herald request for city-related text messages to or from the mayor and City Council members, cited a Nebraska Supreme Court opinion in a case involving the City of Kimball. Kratz argued that the Omaha officials' text messages don't apply to the test that came from that decision.

In the Kimball case, the Supreme Court ruled that documents created by a private investigator on behalf of the mayor were a public record, even though the documents were not held by the city itself. However, the court ruled that the records in the case were covered by an exemption to the public records law, and so the city did not have to release them.

Kratz said the Omaha officials' text messages are held by the wireless carriers they contract with. The officials, he wrote, are not delegating government authority to those carriers or contracting with the providers to perform a government function.

Kratz said the city can't compel a telecommunications provider to disclose text messages without a court order.

"It is theoretically possible, but highly (improbable), for a text message with limited character and data capabilities to have such an influence on a public employee or official that it affects the public interest," Kratz wrote.

Stothert said that after The World-Herald published some texts between city officials, others in the community said they might choose to call her instead. But she said she will continue to text others because it's more convenient.

"Will I stop texting? I won't," she said. "My feelings on it haven't changed. We'll be very cautious about what we do. I'll still do it because it's more convenient."

Last week, Stothert allowed a World-Herald reporter to review her texts messages from that day; she says she deletes her text messages at the end of every day.

Tuesday, the mayor said she still would allow a reporter to review her text messages, though she doesn't think she should disseminate text messages she has received.

Stothert said she wants to be accessible to constituents in any way they want to communicate with her, be it social media, texting or some other outlet.

"We try to use every tool we can that's available now to communicate quickly, accurately and efficiently," she said.

Councilman Chris Jerram said that after a meeting with City Clerk Buster Brown-the official keeper of city records — the councilman decided to use email more instead of text messaging. Tuesday he set up his city email to come directly to his cellphone.

He said he will continue to text occasionally but only for mundane matters, and he will try to communicate mostly through email so the messages can be preserved for the record.

Jerram, along with fellow council members Pete Festersen and Ben Gray, have said they believe text messages containing city business are a public record.

"I handle the vast majority of city business by city email and will continue to do so but believe both email and texts regarding city business should be considered public information," Festersen said. "It's just a matter of time before public records laws and opinions catch up with technology, and they should."

Council members Franklin Thompson and Rich Pahls said they text infrequently and will probably continue to respond to text messages via text.

Pahls showed The World-Herald his city-related text messages Tuesday. He communicates with a handful of other officials through text message, though the texts are infrequent.

Five council members, all except for Thompson and Garry Gernandt, showed the newspaper their texts.

Council woman Aimee Melton said she was glad Kratz issued an opinion, and she considers the matter settled.

An assistant Nebraska attorney general has previously advised that if public officials conduct government business through private email, those records still could be public.

"A key question in determining whether any particular record is a public record is not where the record is located, but rather whether that record is a record 'of or belonging to the government,' " Dale Comer wrote in a 2012 letter about a dispute between the Beatrice Daily Sun and the Gage County Board.

In response to a query last week from The World-Herald, a spokeswoman for the Attorney General's Office issued a statement: "We believe that text messages are public records if they are of or belonging to the State of Nebraska and pertain to public business."

Contact the writer:

402-444-1084, roseann.moring@owh.com

TURNED DOWN

Read Omaha City Attorney Paul Kratz's response to The World Herald's request for city-related texts.On Omaha.com/metro

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