E-mail takes a new place in relation to freedom of information laws.
By John O'Looney
October 2003

In December 2002, a Virginia circuit court found three Fredericksburg City Council members guilty of violating the Virginia Freedom of Information Act because they e-mailed information that should have been discussed in an open meeting.

Like many states, Virginia allows elected officials to communicate with each other to gather information, not to reach a consensus on an issue coming before a council, commission or other legislative body.

Open-government laws create many benefits: Mandating that consensus-building be done in public prevents legislators from making unethical deals; allows citizens to use their opportunity for public comment to impact council or commission members; and lets citizens watch and learn about issues and how mechanisms of democracy work.

But the reality of local citizen-representative government is that the time dedicated to council meetings for the discussion of issues is woefully inadequate, and consensus building often happens outside the public forum.

There are at least three wrong responses to this situation, and one potentially worthwhile approach.

First, we could decry the attitudes of commissioners who don't have the patience or willingness to give the time needed to realize the ideal of open government. This is the last recourse of democracy -- throw the bums out and bring in the new bums -- but it is a recourse that is too infrequent and tenuous to have widespread impact on the government process.

Second, we could create policies like filibusters that allow one or two commissioners to force a debate on unwilling commissioners. Though this might be attractive to democratic theorists, it would make service as an elected official much less attractive. Only a small percentage of the population has the tolerance to listen ad nauseam to their fellow citizens.

Third, we might attempt to craft policies that create a distinct line between appropriate and inappropriate behavior (such as forbidding commissioners to communicate with each other at all between public meetings).

What is interesting about the last suggestion is that the development of e-mail has led at least one local Virginia government -- the Loudoun County Board of Supervisors -- to swear off communicating with each other via e-mail. To my knowledge, no government has taken similar action against other forms of communication.

This is probably because of the nature of e-mail technology: It is semipublic since it can be easily copied or forwarded to others and tends to be archived in organizational databases. We can probably safely assume elected officials throughout the country have long used the telephone in a manner similar to that of the convicted council members. However, because there is no trace of the content of telephone conversations, there is generally no evidence of wrongdoing. With e-mail, the ability to conduct extensive searches for wrongdoing has become clear.

Just as "early money" is the best and most crucial money in a political campaign, early arguments in a consensus-building discussion are likely to be those through which other arguments get filtered. Unfortunately early discussions in most situations do not lead to more deliberative or better policies. This is because of the combination of our tendency to talk first with our friends and the social dynamic known as "group polarization," or the inclination of the members of a deliberating group to move toward a more extreme version of the members' predeliberation point of view.

Essentially if elected officials confer first with those who already think like they do, those officials' views tend to become more extreme and less amenable to consensus building across pre-existing political divisions.

Technological Impact
Different technologies have different impacts on the early communications/group polarization dynamic. The telephone, for one, exacerbated this dynamic. Prior to the emergence of the telephone, communication among elected officials was much more limited to the actual meeting of government representatives. The purity of the open meeting as the sole arena for deliberation of public affairs was particularly evident in rural communities where face-to-face encounters among elected officials were rare.

Television, particularly when it was guided by the fairness doctrine -- which required equal time for opposing points of view -- may have helped to counter the early communications/group polarization dynamic. Without the fairness doctrine, television and television viewing have become more partisan, and therefore, more likely to promote group polarization. Additionally there is anecdotal evidence that elected officials sometimes withhold important research until it can be brought to light in front of television cameras even though the research's impact on fellow officials would have been greater had it been shared earlier.

While the TV genie is clearly out of the bottle and difficult to regulate, e-mail, being still in its infancy, may be more amenable to policy development that supports a democratic culture.

Open-Door Policy
The fourth and best response to the Fredericksburg case is to open up elected officials' e-mail to the public.

E-mail is a more efficient form of the old and valuable technology of writing, which helps promote rather than retard thought and deliberation, and generally reduces rather than exacerbates sensationalism. Fortunately the same qualities (amenable to copying and archiving) that make e-mail a point of vulnerability for elected officials can be used to help create a purer form of open government.

Open government probably reached its zenith in the administration of former New York Mayor Fiorello Henry LaGuardia, who declared his office open to any citizen at any time. Under LaGuardia, groups of citizens watched lobbyists petition the mayor. Obviously the opportunities for unethical deals were minimized.

E-mail allows an opportunity to re-create the conditions of the LaGuardia open-door policy. Governments should consider refining their open-meeting legislation to allow for open e-mail. As long as electronic communications take place via an open channel -- either a Web forum or e-mail list that all citizens can subscribe to -- such communications would not be considered in violation of open-meeting laws. Paper copies of the debate could then be distributed at public meetings.

There would be several benefits to this proposal. First, those with opposing or alternative points of view could get in on discussions before the group polarization process got too far along.

Second, as more citizens began to realize the real action was taking place prior to the formal meeting -- and that they could be part of this action -- they would begin to participate in this traditionally hidden area of the public-policy process.

Third, as activists began to realize the importance of early communications, they would be forced to put their views in writing. As every writing teacher knows, this process often exposes faulty thinking and leads to idea refinement. We need to recognize and address the digital divide, but as e-mail access rates approach universal levels, this will not be a persuasive argument against the proposal. In the interim, city halls and libraries can provide terminals where citizens can review and enter the debate.

The most important part of public-policy deliberation and debate takes place outside of open meetings. E-mail provides a rich channel for citizen information and allows citizens to participate in the most critical phases of public-policy deliberation.

By allowing and encouraging elected officials to use open e-mail channels to make this part of the deliberation process public, we will make our civic polity more participative, deliberative and enlightening.

John O'Looney, Ph.D., is a public service associate at the Carl Vinson Institute of Government at the University of Georgia in Athens, Ga.