'This board has messed this up from day one' 4J board gets schooled on public records law
Following a controversial and months-long back-and-forth about a private messaging app, the Eugene School District 4J school board on Wednesday got a legal lesson in public records and open meetings.
Four members were alleged to be using the encrypted messaging app "Signal," which deletes messages after a certain period of time. Board debate during recent public meetings has raised additional questions about whether members have been violating state law in how they communicate with one another.
Board members — some of whom have been serving in elected positions for years — have appeared confused about what, if any, requirements applied to various types of digital communication.
Disagreement over even discussing the issue
Signal was first mentioned at the Feb. 1 board meeting.
Previously, board member Laural O'Rourke, who was not present during Wednesday's meeting, asked to discuss the policy on acceptable member-to-member communication. Later, board member Alicia Hays requested a specific discussion about the Signal app, which was rejected by the majority of the board.
Board member Gordon Lafer, who has admitted to using the app and said he has since ceased use for now, requested a legal consult on the matter and a more broad conversation about public records and communications.
Wednesday's debrief was in response to that request.
The board has been split, with O'Rourke, Hays and Judy Newman in favor of a Signal discussion and Lafer, Maya Rabasa, Michelle Hsu and Keerti Hasija Kauffman in opposition.
Attorney Eric DeFreest gave the presentation.
Essentially, he said it's more about the subject matter than the device or app.
For example, a private family photo that happens to be on a publicly-owned computer would likely not be a public record because it isn't related to the board's work. On the other hand, a text message about a board vote on a personal phone or laptop would be subject to public record law.
"It's very fact-specific as to whether something is a public record," DeFreest told the board. "Just because the record may be on a public computer or public file, may be a picture of your kids that's not necessarily a public record. You have to look at what the content is."
Although the focus of the lesson was not on the Signal app, the conversation revealed insight into how public records could apply to it.
What is the law?
According to state law, if a written discussion relates to the official duties of the public officials, then they must be retained.
4J Policy KBA regarding public records and board communication states that any information is public record if it:
Is prepared, owned, used or retained by the district.
Is related to an activity, transaction or function of the district.
Is necessary to satisfy the fiscal, legal, administrative or historical policies, requirements or needs of the district.
DeFreest said that it's all about the content, and not so much about the mode of communication.
"Record retention schedules is not dependent upon what media is used for the communication. It's all about the substance of the communication," he said.
KBA also states that "no records will be released for inspection by the public or any unauthorized persons ... if such disclosure would be contrary to the public interest, as described in state law."
DeFreest's document on public records states that there is a "personal privacy” exemption in state law. The information would be exempt if releasing it would be “an unreasonable invasion of privacy."
For example, a district employee's personal address, date of birth or other private information would not be subject to public record. But he said exemptions are "highly case specific."
The board and DeFreest also discussed issues of quorum or serial communication, both of which are not allowed according to public meetings law. For example, it would be a violation of public meetings law if four of the seven board members got together for happy hour without formally notifying the public, or all participated in a group text.
He advised the board to be cautious with "reply all" emails that all board members can see when it concerns current topics of debate or opinion.
"If it is with regard to some topic which is a matter which is in current consideration by the board or is recently anticipated to soon will be considered by the board ... it would be an engagement of deliberation, which should be in a public meeting," he said.
Board members' responses
Hays, who is the longest-serving member with 16 years on the board, said this alleged type of deliberation between board members outside of public meetings was not something she has seen in the past.
This will be Hays' last year on the board as she has chosen not to run for reelection in May.
"Get your new board members some really good training because this board has messed this up from day one, four years ago, at least two years ago," Hays said. "Let's make sure everybody gets the same information."
Previously, 4J was not able to confirm to the Register-Guard that the board members ever received formal training on public records and records retention.
However, Hays added that that doesn't mean there can be no board communication.
On Wednesday there was a false bomb threat at South Eugene High. Board chair Maya Rabasa called the board members individually to alert them of the situation as it was unfolding. Hays said there is a need to keep board members updated on those types of situations.
"That wasn't about a decision. The board chair has the right to call us," Hays said. "Not only that, I have the expectation that I'll be informed either by the superintendent or, in this case, the board chair. We didn't deliberate, and that's what I believe is fine."
Rabasa pointed to 4J Policy KBA for public records, which was last updated in 2018. It states that "public record does not include messages on voicemail or on other telephone message storage and retrieval systems."
She noted that while the board members are held to state law, the 4J policy is still unclear. It could be interpreted that all telephone messages, including texts, may not apply to public record.
She said they should update the policy to better reflect the law.
DeFreest provided his understanding of those records as well.
"While voice messages, those aren't required to be retained, text messages, those are essentially an email via a cell phone," DeFreest said.
Rabasa also agreed there is a need for better training.
Application to Signal
Although DeFreest did not specifically address Signal, he mentioned Snapchat, which similarly deletes messages after a given amount of time.
He said if the substance applies to public duties, it would still need to be retained.
Hays was vocal during the discussion, bringing the focus back to Signal several times.
Hays asked what sort of liability there would be for alleged board members' erased records. DeFreest said it would depend on the content of the messages, and he didn't have an immediate answer.
"The problem is when it (the messaging) goes away and you intend it to go away, you don't know," Hays said. "You then get to make the decision whether it was substantive or not. That's, I think, where we have to pay attention as a board that we should not be using apps like that, because it isn't appropriate for record retention, because then we make ourselves the judge and the jury on what should be retained and what shouldn't."
Hays said she has never used Signal and acknowledged that Lafer has publicly stopped using Signal. Hasija Kauffman has also previously mentioned she used it for work. However, Hays said there are other board members who she has alleged may be using the app who haven't admitted to it.
"What I'm hoping for is that we can be a board that is ethical and that really understands why we have sunshine laws and how important it is that we, as the public bodies, do our business in public," Hays said.
Who can access public records?
Public records are not limited to media. Public records can be accessed by anyone in the public.
Community members can request a record via electronic form, email or U.S. mail. More information on requesting records from 4J can be found at 4j.lane.edu/communications/publicrecordsrequests.
Miranda Cyr reports on education for The Register-Guard. You can contact her at mcyr@registerguard.com or find her on Twitter @mirandabcyr.
This article originally appeared on Register-Guard: Eugene 4J school board gets lesson in public records, open meetings
