Updated, 2 July 2009, to further clarify the difference between clandestine Yahoo Group and the privately owned but available to all website used by the planning committee. Never hand your enemies a sword. Ancient wisdom, that — and because they forgot or ignored it when they conducted official business on a members only Yahoo Group, Flathead County planning director Jeff Harris and his staff are bleeding from wounds inflicted by critics of the Lakeside planning process.
Use of the Yahoo Group is a legitimate issue, and the critics have a legitimate concern. But the overarching issue is a philosophical dispute over planning itself, and the website — the sword — is being used to hack away at both the idea of planning and the tenure of Harris. Were the Yahoo Group issue not available, Harris’ foes would be pounding on him with another cudgel. Keep that in mind as you evaluate the situation. The questions raised by the use of the clandestine discussion group can be resolved easily. The differences over the planning process, and a plan itself, are vast and may never be bridged.
Therefore, in this posting I’m limiting my discussion of the situation to the Yahoo Group and internet communications.
As both the Flathead Beacon (Keriann Lynch, 26 May 2009) and the Daily InterLake (Lynnette Hintze, 24 June 2009) reported, Barbara Miller, the secretary of the committee, set up a Yahoo Group, to facilitate the planning committee’s internal communications. Yahoo groups can be set up for free, but there are some restrictions, among them the length of time files can be stored on Yahoo’s server, and the amount of server space that can be used (100 megabytes), that make it less than ideal for processes that can last for years. A privately owned website, www.lakesideplan2008.com, was established to provide information to the general public.
The lakesideplan2008.com domain name is registered to a Barbara Miller of Sunnyvale, CA, according to Australian registrar www.melbourneit.com. Melbourneit’s whois information lists the administrative and technical contacts as “PrivateRegContact,” with a post office box number identical to the Sunnyvale PO box Melbourneit lists for Miller. The obvious conclusion: the Lakeside planning committee’s Barbara Miller and the owner of the lakesideplan2008.com domain name are the same person.
A couple of observations are in order regarding the website and the Yahoo Group:
Yahoo Groups can have a closed, screened membership, and that was the option Miller chose:
Miller set up the Web group so that as the moderator she could review any new members. After spam slipped through the junk e-mail filter, she said, she changed the configuration to make it more restrictive so no one could access it, send e-mail or be a member unless Miller approved it.
“I want to make it clear that the Web site was set up to help with the logistics’ of the neighborhood planning process, Miller said. “There was no collusion, no secrecy and no conspiracy.”
The main reason for the membership requirement was to avoid spam and potential computer viruses, she said. Hintz story.
Members of Harris’ staff used the committee’s restricted and private website and Yahoo Group for official county business.
Until recently, the neighborhood planning committee’s forum – like many others on the site – has not been accessible to the public; a password was required to access it.
More than 500 messages were sent among group members during the 19 months the site was used. Several documents were also uploaded and shared among members, including agendas, minutes and draft copies of the plan. Lynch story.
At some point — possibly when Harris’ staff began using the Yahoo Group for official business — the committee became subject to Montana’s open meetings and open records acts. In my opinion, that’s the point at which the Yahoo Group should have been shut down, and the everything on it made available to the public.
Deputy Flathead County Attorney Jonathan Smith, in a carefully worded memorandum to Harris that perhaps anticipated future litigation over the issue, suggested a way to square the committee’s conduct with the law:
Since state statutes haven’t kept up with technology, Smith said the committee’s use of the Web site wasn’t specifically prohibited. “However, when a committee subject to the open meeting and public document acts maintains a Web site that is not accessible by the public, it may well create a perception that the public’s business is not being carried out in the sight of the public,” he wrote.
Smith recommended the committee close down the site after creating a paper file of the documents and conversations held there. That paper file should then be made available to the public, he said. In the future, Smith recommended the committee should distribute drafts at meetings or by mail.
“We understand that recent technological advances can allow for more efficient communication and distribution of documents, but it also may interfere with the public’s interest in monitoring the conduct of public business by public bodies,” Smith wrote. “We believe that the public’s right to watch government action should prevail even when efficiency suffers,” he added. Lynch story.
With that solution, which appears to suggest only paper records, not only does efficiency suffer, so does useful access to public records. Smith’s solution can be read as positing a false choice between paper and electronic records. All public records should be available in standard and useful electronic formats for convenient anonomyous downloading from government websites. The question is not whether they should be posted on a website, but on which website they should be posted. The answer, of course, is that they should be posted on the website of the government agency or agencies involved. In this case, the documents should be posted on Flathead County’s website. And some documents are.
Any public document, of course, can be made available for downloading by any private website. I’ve done this a number of times for this website and for the websites of clients, although I try to also include a link to the website from which document was obtained. Often I do this in cases where the government website offers a document only in a multitude of downloads instead of a single download. In those situations, I’ve downloaded the entire documents, zipped the files into a single file, and posted it as a single download for the convenience of the reader. In other cases, I’ve collected documents from a number of websites and made them available in one place, again for the convenience of the reader. So the Lakeside planning committee was within its rights to post public documents on www.lakesideplan2008.com, and would be within its right to continue doing so.
In a way, Miller and her colleagues are examples of the venerable folks truth that “no good deed goes unpunished”. I discern no evil intent in their behavior, although I do think their concern over spam and computer viruses is to some extent a cover for attempting to exclude disruptive elements from their discussions. The website and Yahoo Group, while legally problematic once the open meeting and public records laws kicked-in, were a reasonable effort to facilitate intra-group communication.
Why Harris and his staff handed their critics such a heavy and sharp-edged sword is more difficult to explain. At a minimum, it’s evidence of a tone deaf approach to the requirements of open meetings and records. At some level I suspect it’s an example of expedience triumphing over professional judgment. If Flathead County’s planning department had a bigger budget, and perhaps better and more extensive procedures, the dispute over the alleged “secret” website for the neighborhood planning committee for Lakeside might never have occurred
But now that the issue is before us, the county needs to adopt, and to adopt quickly, a clear and enlightened policy governing independent websites established and/or used by county sanctioned citizens committees. I think the county commission would be wise to establish an advisory committee on the subject, and make sure the committee includes smart people who aren’t intimidated by lawyers and bureaucrats and who possess the will and moxie to raise a ruckus if a ruckus becomes necessary. In the meantime, I think the county attorney should issue interim guidelines.