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Devices raise FOIL questions

July 24, 2012
The Leader Herald

Changes in technology and the way government officials use email and smart phones to communicate have raised some thought-provoking questions over the years.

Last week, The Associated Press reported that Gov. Andrew Cuomo doesn't conduct any state business through email - with either his state or personal accounts.

Instead, Cuomo's favored means of communication is his Blackberry's PIN-to-PIN messaging system, known to Blackberry users as BBM.

There is no record of BBM communications, therefore they cannot be provided to the public as state records, as archived email messages are available under the Freedom of Information Law.

Instead of using email, BBM users connect by giving each other the personal identification numbers that come with their Blackberry devices.

Emails usually can be recovered, even if they're deleted, because they're sent over a data server.

Blackberry maker Research in Motion has confirmed in several media reports that PIN messages cannot be recovered.

It's interesting that Cuomo still uses a Blackberry, which has taken a back seat to Android-powered smartphones and the iPhone. It seems today Blackberry devices mostly are seen in the hands of those on the payrolls of government and a few privacy-conscious businesses.

The Freedom of Information Law defines "record" to mean any data in any physical form, including email.

However, as Robert Freeman, executive director of the state Committee on Open Government, told The Associated Press, emails from Cuomo concerning state business could be considered preliminary, interagency communications, making them exempt from the FOIL. They wouldn't have to be released without a court's subpoena.

We realize this raises a complicated issue that could filter into local government as our local politicians conduct the public's business over their handheld devices.

However, we have to wonder how much of this communication would truly provide the public with valuable insight into the decisions and nuances behind policy-making.

What is the solution? Should we bar public officials from using Blackberry devices and talking over the phone, since there may be no record of that communication either?

We don't think that's reasonable, but we do hope public officials don't take advantage of modern technology to hide information that citizens have a right to know.



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