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Text Messages as Public Records (i.e., Government Property)
Friday, July 13th, 2012
Robert Wechsler
There is a serious controversy going on right now in Jacksonville
regarding the transparency of text messages by local
government officials concerning government business. This is an issue
where most governments have failed to keep up with technology. That's
common, of course. But from a government ethics point of view, what
is most important is how the issue is approached.
Florida, which is known for its good sunshine laws, dealt with the issue back in 2009 when, according to an article in the Jacksonville Daily Record this week, the attorney general announced a policy treating text messages as public records and automatically retaining those messages that go through the agency server. And, according to another Daily Record article this week, Florida's Sunshine Technology Team determined that texts were public records. Its then chair happens to now sit on the Jacksonville ethics commission.
In the most infamous case involving local government text messages, the messages sent between Detroit's mayor and his aide/lover, a court ruled that the officials had no right to assert a legal privilege that would allow them to keep these text messages secret, according to an article in the Detroit Free Press in March 2009.
The court went to the root of the issue, stating that text messages by and between public officials, especially on government cellphones, are not their messages. They are the property of the government.
According to an article in the Columbus (IN) Republic, in June 2012 an Illinois court found that text messages between council members, even on personal devices, are public records. The state's attorney general has welcomed the clarification of the pre-text-messaging act that this decision provides.
But not all courts agree. For example, according to an article on the WNCT website in July 2010, a North Carolina court ruled that text messages received on a state highway patrol officer's cellphone are not considered public records.
The first interesting part of the Jacksonville story is that its new ethics commission (whose administrator is City Ethics' president, Carla Miller) has a subcommittee on transparency and open government. Few ECs deal with transparency issues or have subcommittees, so this subcommittee is very unusual. And an excellent idea.
The subcommittee started with the premise that text messages are public records, since the state AG had determined this, and focused on how to preserve these messages. Therefore, it met with IT people in the city government, and there was agreement to preserve on the public server all text messages made using government cellphones. On Tuesday, city employees were told via e-mail by the city's IT division and the EC, that their text messages would be retained, starting next Monday.
But the city's general counsel has said that text messages do not rise to the level of importance that requires retention. She said that the messages should only be used for "transitory communications" that can be safely deleted, not for significant discussions that would need to be kept under the state's Sunshine Laws.
This ignores the fact that text messages are used for all sorts of purposes, and that with good, free voice-to-text apps, such as Dragon Dictation, it is easy now to do long text messages without having to type on teeny button or touch keyboards. It's one thing to recommend that text messages not be used for government business; it's another to assume that this will actually be the case.
In an editorial today, the Daily Record took the EC's side of this dispute. It referred to the general counsel's position as a "quaint notion" and insisted that text messages be subject to public access.
The editorial goes beyond what to do with text messages made on government phones. As with e-mails, it doesn't matter where they originate, on a government or personal device; they are still government property if they relate to government business. The editorial talks of how to best make text messages from personal devices publicly accessible as well. Its suggestion is a good one: "Such protocols may involve an automatic copying of messages to a public agency server or a requirement that officials take proactive steps to copy such messages that are sent and received." I am told that there are free apps that will do this.
Hopefully, the general counsel will not stand in the way of these policies.
It's worth noting here the big elephant in the room. There is now technology that can cheaply transfer a phone conversation into a text file. It's regularly done with voice mail. Why not with phone conversations about government business? The technology is far from perfect, but it will keep improving.
Phone and in-person conversations have always been the way to deal secretly with government business. If these were made public, what would officials do? What effect would this have, besides the pain of making sure one is being recorded (or not, as the case may be)? It would be equivalent to having one's entire public life recorded on camera, like one long public meeting. Look what it did for the Nixon White House. Do we want to preserve all that swearing and nastiness? But then, Nixon didn't think the tapes would be made public, at least not during anyone's lifetime. He thought the recordings were his, personally.
Theoretically, there is no reason not to discuss this extension of public records laws. Practically, it's hard to imagine it happening. It would require a huge change in attitude, a great sacrifice, a true commitment to the idea that a public official's words and actions are truly public. It would be like having employees sit in an open office plan, where not only their colleagues and their boss could listen in on their conversations, but even citizens, a few of whom may be looking to catch them saying something they wish they hadn't said.
I do not mean to imply that text messages are part of a slippery slope to recording conversations. They are not. Text messages should be public records, and whatever their state public records laws may or may not say, cities and counties should start retaining them, and requiring their officials and employees to send their government-related text messages from their personal devices to the public server for retention.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Florida, which is known for its good sunshine laws, dealt with the issue back in 2009 when, according to an article in the Jacksonville Daily Record this week, the attorney general announced a policy treating text messages as public records and automatically retaining those messages that go through the agency server. And, according to another Daily Record article this week, Florida's Sunshine Technology Team determined that texts were public records. Its then chair happens to now sit on the Jacksonville ethics commission.
In the most infamous case involving local government text messages, the messages sent between Detroit's mayor and his aide/lover, a court ruled that the officials had no right to assert a legal privilege that would allow them to keep these text messages secret, according to an article in the Detroit Free Press in March 2009.
The court went to the root of the issue, stating that text messages by and between public officials, especially on government cellphones, are not their messages. They are the property of the government.
According to an article in the Columbus (IN) Republic, in June 2012 an Illinois court found that text messages between council members, even on personal devices, are public records. The state's attorney general has welcomed the clarification of the pre-text-messaging act that this decision provides.
But not all courts agree. For example, according to an article on the WNCT website in July 2010, a North Carolina court ruled that text messages received on a state highway patrol officer's cellphone are not considered public records.
The first interesting part of the Jacksonville story is that its new ethics commission (whose administrator is City Ethics' president, Carla Miller) has a subcommittee on transparency and open government. Few ECs deal with transparency issues or have subcommittees, so this subcommittee is very unusual. And an excellent idea.
The subcommittee started with the premise that text messages are public records, since the state AG had determined this, and focused on how to preserve these messages. Therefore, it met with IT people in the city government, and there was agreement to preserve on the public server all text messages made using government cellphones. On Tuesday, city employees were told via e-mail by the city's IT division and the EC, that their text messages would be retained, starting next Monday.
But the city's general counsel has said that text messages do not rise to the level of importance that requires retention. She said that the messages should only be used for "transitory communications" that can be safely deleted, not for significant discussions that would need to be kept under the state's Sunshine Laws.
This ignores the fact that text messages are used for all sorts of purposes, and that with good, free voice-to-text apps, such as Dragon Dictation, it is easy now to do long text messages without having to type on teeny button or touch keyboards. It's one thing to recommend that text messages not be used for government business; it's another to assume that this will actually be the case.
In an editorial today, the Daily Record took the EC's side of this dispute. It referred to the general counsel's position as a "quaint notion" and insisted that text messages be subject to public access.
The editorial goes beyond what to do with text messages made on government phones. As with e-mails, it doesn't matter where they originate, on a government or personal device; they are still government property if they relate to government business. The editorial talks of how to best make text messages from personal devices publicly accessible as well. Its suggestion is a good one: "Such protocols may involve an automatic copying of messages to a public agency server or a requirement that officials take proactive steps to copy such messages that are sent and received." I am told that there are free apps that will do this.
Hopefully, the general counsel will not stand in the way of these policies.
It's worth noting here the big elephant in the room. There is now technology that can cheaply transfer a phone conversation into a text file. It's regularly done with voice mail. Why not with phone conversations about government business? The technology is far from perfect, but it will keep improving.
Phone and in-person conversations have always been the way to deal secretly with government business. If these were made public, what would officials do? What effect would this have, besides the pain of making sure one is being recorded (or not, as the case may be)? It would be equivalent to having one's entire public life recorded on camera, like one long public meeting. Look what it did for the Nixon White House. Do we want to preserve all that swearing and nastiness? But then, Nixon didn't think the tapes would be made public, at least not during anyone's lifetime. He thought the recordings were his, personally.
Theoretically, there is no reason not to discuss this extension of public records laws. Practically, it's hard to imagine it happening. It would require a huge change in attitude, a great sacrifice, a true commitment to the idea that a public official's words and actions are truly public. It would be like having employees sit in an open office plan, where not only their colleagues and their boss could listen in on their conversations, but even citizens, a few of whom may be looking to catch them saying something they wish they hadn't said.
I do not mean to imply that text messages are part of a slippery slope to recording conversations. They are not. Text messages should be public records, and whatever their state public records laws may or may not say, cities and counties should start retaining them, and requiring their officials and employees to send their government-related text messages from their personal devices to the public server for retention.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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