Artificial Intelligence: Preparing for the Next Governance Challenge in the New Year
Artificial Intelligence (AI) is no longer a futuristic concept. It is a fast-moving reality reshaping how boroughs operate and provide services to the people they serve.
The Impact of AI on Local Government
The growth of AI touches nearly every aspect of local government. Borough officials must balance innovation with caution. Every AI interaction, from generating a press release to summarizing a zoning ordinance, can carry legal consequences and raise ethical questions that boroughs cannot ignore. AI has the potential to discriminate and provide false information, known as hallucinations, as well as waive attorney-client privilege and create records under Pennsylvania’s Right-to-Know Law (“RTKL”).
Understanding Public Records and AI
Under the RTKL, a record is broadly defined as “information, regardless of physical form or characteristics, that documents a transaction or activity of an agency.” This includes records created, received, or retained pursuant to law or in connection with a transaction. When a borough employee uses an AI tool for borough business, they are not just adopting a new technology; they are creating a new record. Understanding this distinction is key to protecting internal communications.
For example, if a borough manager uses an AI platform to draft an internal memo, that content may be classified as a record under the RTKL. It is the responsibility of the Agency Open Records Officer to seek these records, as platforms like ChatGPT maintain detailed logs of user activity.
AI in Public Meetings: Sunshine Act Implications
AI also intersects with Pennsylvania’s Sunshine Act, which ensures the public’s right to witness the decision-making of their local government. Borough officials must ensure that AI tools are not used in ways that appear to deliberate or reach conclusions outside of a public meeting. If an AI system analyzes council communications and recommends policy outcomes before any public discussion, it could give the appearance of private deliberation.
Litigation and Emerging Case Law
AI creates discoverable information. Prompts and generated outputs from AI may qualify as electronically stored information (ESI), which is discoverable during litigation. Courts are already grappling with these issues in other states, as seen in New York Times v. OpenAI, where evidence in the data supported claims of copyright infringement. Courts are recognizing that AI chats are discoverable and are compelling broad AI data retention.
How Can a Borough Protect Itself?
1. Develop an AI Policy
The best protection for a borough is to work with its solicitor to adopt an AI policy to reduce risk and liability. A well-written policy demonstrates a borough’s willingness to be legally compliant. Key components should include:
- Applicability: Specify who the policy governs.
- Scope of tools: Identify which AI systems are covered.
- Purpose and permitted use: Describe acceptable uses of AI.
- Definitions: Clearly define key terms.
- Human oversight: Require designated employees to review AI-generated content.
- Record retention: Clarify how AI-related materials will be retained.
- Training and accountability: Include annual review and training requirements.
2. Establish an AI Governance Committee
A strong policy is most effective when paired with oversight. An AI Governance Committee should be established to review technology and provide periodic reports to the council on AI usage and compliance.
New Year’s Checklist: Five Steps Boroughs Can Take Now
- Identify where AI tools are already being used in borough operations.
- Draft and adopt an internal AI policy prepared by your solicitor.
- Establish an AI Governance Committee for oversight.
- Train employees on appropriate and prohibited AI use.
- Explain the borough’s approach to AI to maintain public trust.
Looking Ahead
AI will continue to evolve, and it is the responsibility of a borough to address the risks associated with its use. By approaching AI deliberately, local officials can ensure that these tools strengthen public trust instead of challenging it. The future of municipal governance will include artificial intelligence, and it is crucial for local officials to be prepared for AI’s impact on their borough.
