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Editorial Advisory Board: Hogan and aides need to get off Wickr

Maryland law provides that: “All persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees.” Some records or  information  are exempt due to privacy or confidentiality concerns; some records may be withheld if the custodian agency determines release is contrary to the public interest. That determination can be challenged.

Compliance with the law and challenges to claimed exemptions become impossible if elected officials send content to other government officials or agencies using software such as Wickr that allows the sender to make the message disappear in, say, two days. This is exactly what Gov. Larry Hogan has been doing.

He recently defended his practice by self-characterizing his communications as “casual conversations or chats with people inside and outside the government about things that are happening in the paper.” He defends his practice by claiming that his messages are not official materials. Problem is, we will never have a chance to independently review these records and verify his self-determination.

Hogan‘s messages, according to The Washington Post, deal with Maryland’s COVID-19 response and conversations and complaints about the media. These messages were deleted 24 hours after they were sent.

State records show that Hogan’s chief of staff and director of communications were recipients because they responded to the  self-destructing texts. This would certainly raise doubt as to whether these communications were exempt from being  archived and made available to citizens and the press for the supposed reason that they were sent to nonstate employees.

In one message reported by The Hill, Hogan complained about 500,000 COVID tests he bought from Korea. He wrote, in an obtained text,  “Stop talking about 1000 f—- ing tests”!!! Read what I say. Tests are unlimited.”

The citizens of Maryland should not be required to take Hogan‘s word, or rely on his sole judgment, that these communications are not the subject of the affairs of government, or they are not official acts and were therefore need not be maintained. Even if he was acting in good faith, he may be wrong and his use of the Wickr  software makes independent review impossible.

In response, two legislators, a senator and a delegate, are looking to intervene with a new law. Questions have also been raised by good government advocates asking whether the governor’s use of Wickr violates the Maryland public records requirements, ostensibly enacted to enable public access to archived communications.

In a world of politics begging for transparency from elected officials, it is inappropriate for Hogan to self-determine what is and what is not a public record. For the governor to claim — after it was learned he used disappearing texts to communicate with staff and others — that there is “nothing inappropriate in what we do” is simply wrong.

There needs to be the opportunity for oversight, and his use of Wickr makes that impossible. There needs to be a chance to contest his determinations that these texts would not have been available in state archives due to their nature. He made that impossible, as well.

We encourage the efforts of members of the legislature to halt the use by elected officials of software that deletes their communications made to anyone in government. Use  of software such as Wickr sends (and erases) the wrong message.

Editorial Advisory Board member Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Andre M. Davis

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Roland Harris

Michael Hayes

Julie C. Janofsky

Ericka N. King

Angela W. Russell

Debra G. Schubert

L. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.