Chilling Citizen Participation

( – promoted by Sue Prent)

UPDATED:

I received an email from Anne Donahue this morning (March 12), stating that she was “unaware of any messages she has received from [me] that did not get a response.” So I dutifully dug through old emails at any account that I may have used to contact her, and I was unable to find any instance where Anne didn’t respond to me. I’ve changed the language below to reflect this.

-Jeremy


In a recent Front Porch Forum post, email newsletter, and newspaper article, one of my representatives in the legislature, Rep. Anne Donahue, noted that she refused a request for a copy of email communications (in this case, with a lobbyist) on principle.

Before I weigh in, I want to briefly share where I’m coming from. My “day job” is doing research and teaching in the fields of computer science and computer security at Norwich University. I consider myself an advocate of personal privacy and have shared my extremely strong feelings about the recent disclosures of the NSA’s behavior in a number of places, including on statewide television.

On the other hand, I am also an advocate of open, transparent, and responsive government. While there are a number of exemptions in Vermont’s transparency laws, I profoundly disagree with Rep. Donahue’s stance that this communication is or should be exempt. Beyond my job at Norwich, I am also on the Selectboard for the Town of Berlin, which means my communications related to Town business are subject to the same Public Records Law. I can’t think of any particular email that I have received from a Berlin resident that would be exempt from release, should someone ask for it. Indeed, my expectation that such emails are publicly available is spelled out at the bottom of every email I send from that account:

Please note that any response to this message may be considered a public record according to Vermont’s Public Records Law.

We elect our representatives to represent us, and we give them the privilege and authority to make decisions about our lives that we do not get to make ourselves. With that privilege comes a certain responsibility to use that authority ethically, wisely, and to the benefit of all Vermonters. The Public Records Law provides each of us the ability to be part of the system of checks and balances, to verify that their authority is used properly. It states, in part:

Officers of government are trustees and servants of the people and it is in the public interest to enable any person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment.

Even if a representative makes a mistake–which happens and is often explainable–or suffers an inconvenience from its disclosure, access to this information is our right. Otherwise, we have little way of knowing which of our representatives are doing their jobs and which are not. I would suggest to any citizen who is truly worried about their communications becoming part of the public record to not email their representatives, but to instead call them on the phone and talk to them. Better yet, sit down with them and have a chat over coffee!

What I find to have more substantial chilling effects on citizen engagement are our elected officials themselves. Of the five elected legislators that represent me (two representatives, three senators), only three of them, Sen. Bill Doyle, Sen. Anthony Pollina, and Rep. Donahue reliably respond to my messages, and in the case of Sen. Doyle, this is usually in the form of a phone call within 24 hours. I understand that legislators are busy, especially between January and May. Still, it’s hard to tell if messages are read and considered or just quietly disregarded, however insistent our representatives are about the importance of public participation in the legislative process.

I recently testified to the House Government Operations Committee as an expert in information security about the security of vote tabulators and the need for a robust system of audits for elections. Before I deliver the punchline, I want to be clear that I have a full-time job (thankfully with a schedule flexible enough to allow me to testify) and two young kids. These two responsibilities together, plus my responsibilities on the Selectboard don’t leave me with much free time. I did, however, manage to carve out about 4 hours over two days to testify on a topic in which I have some expertise and about which I feel strongly. It was clear that several members of the committee were uninterested in my testimony, and at least one suggested that I didn’t know what I was talking about and was somehow making things up. Again, I took time out of my days (time that I didn’t really have) to help explain something to the committee while they deliberated on the bill at hand. I left feeling like I had just wasted my time.

This attitude, more than the privacy of emails, dissuades members of the public from participating in the legislative process. I respectfully request that Rep. Donahue change her mind and release the contents of the emails, and that all elected legislators respond similarly to future requests. In this case, notions of email privacy should not trump openness and transparency in our government.

3 thoughts on “Chilling Citizen Participation

  1. I would suggest to any citizen. . . worried about their communications becoming part of the public record to not email their representatives, but to instead call them on the phone and talk to them. Better yet, sit down with them and have a chat over coffee!

    Communicating a message to one’s Representative in person (and expecting confidentiality), then communicating the exact same message in writing (with the expectation that it will become an open public record) is arbitrary and inherently contradictory.

    “. . . sit down with them and have a chat over coffee!” The “talk don’t write” suggestion also ignores the burdens citizens encounter when contacting our Representatives. It is generally the lobbyists who are calling & chatting (after all, they are paid to do this all day long). Most of us, on the other hand, do not have the luxury of enjoying a day traveling to the Capitol for a cup of coffee.

    The argument, above, is that

    (1) I can read my opinion to my Representative – and expect confidentiality.

    (2)However, if I give her the piece of paper, from which I read my comments, my Constituent-Representative communication becomes an open public record.

    Once again, this is completely arbitrary.

    That the same words can be arbitrarily classified both as a privileged communication or an open public record suggests that there is no rational justification for either.

    I recommend reading Rep. Anne Donahue’s thoughtful explanation here: http://representativeannedonah

    A Question: What if I send my representative a talking email (i.e. no text) and my representative listens to it on her laptop? Does that constitute “talking” to or “emailing” my Rep?”

    Although you cannot “print” a talking email, my Rep. could forward my communication it or play my voice to someone else. Does that make it privileged or an open record?

    Would the answer be different if my legislator were handicapped and needed to use speech-to-text software to receive my email?

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