Text Messages as Public Records (i.e., Government Property)
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.<br>
<br>
Florida, which is known for its good sunshine laws, dealt with the issue
back in 2009 when, according to <a href="http://www.jaxdailyrecord.com/showstory.php?Story_id=536948" target="”_blank”">an
article in the Jacksonville <i>Daily Record</i> this week</a>, 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 <a href="http://jacksonville.com/news/metro/2012-07-11/story/jacksonville-genera…; target="”_blank”">another
<i>Daily Record</i> article this week</a>, Florida's Sunshine Technology
Team determined that texts were public records. Its then chair
happens to now sit on the Jacksonville ethics commission.<br>
<br>
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 <a href="http://www.freep.com/article/20090304/NEWS01/90303093/Judge-rules-Kilpa…; target="”_blank”">an
article in the Detroit <i>Free Press</i></a> in March 2009.<br>
<br>
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.<br>
<br>
According to <a href="http://www.therepublic.com/view/story/b9496ae8a7314f7abbeb740909785572/…; target="”_blank”">an
article in the Columbus (IN) <i>Republic</i></a>, 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.<br>
<br>
But not all courts agree. For example, according to <a>an
article on the WNCT website in July 2010</a>, a North Carolina
court ruled that text messages</span> received
on a state highway patrol officer's cellphone are not considered
public records.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
In <a href="http://jacksonville.com/opinion/editorials/2012-07-13/story/texting-sho…; target="”_blank”">an
editorial today</a>, the <i>Daily Record</i> 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.<br>
<br>
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.<br>
<br>
Hopefully, the general counsel will not stand in the way of these
policies.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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