Top Tips for Tackling Text Messages in Your Public Records Process

January 22, 2020

They’re unwieldy, they’re hard to track down, and they eat up precious work hours. Text messages are the ogre in your records request fairy tale. Alas, the course of true love transparency never did run smooth. Is dealing with text records a hopeless affair, or is there a better way forward? 

Agencies all across the country are having issues processing the requests for relevant text messages. Regardless of your commitment to transparency, text records are simply difficult to track down, bundle together, and process. It is exactly what North Carolina’s agencies faced when record requests began increasing for text messages sent and received by the state’s top officials. As the Knoxville News Sentinel states, “Without ready help from phone carriers or a program designed to make the process efficient, state officials say that providing text messages in response to public records requests is cumbersome and time-consuming.” 

Getting an accurate estimate of SMS messages that are public record is problematic, as the number of government-issued phones is unknown. Likewise, messages sent on private devices regarding public issues are still part of the public record----IF agencies are lucky enough to track them down. As a test of North Carolina’s adherence to records law, various media outlets requested texts made by state officials. The response from the state departments was varied, and mostly incomplete or without context if they released records at all

This isn’t an isolated situation. The truth is, when public records laws and department policies were drafted, text messages either weren’t in existence yet or they weren’t in vogue. Nowadays, it is commonplace to rely on text messaging as a mode of work communication. Policies, procedures, and general knowledge regarding public records simply hasn’t caught up yet. 

In fact, more governments are working to update laws to reflect the changing environment. Localities like Highlands County, Florida have gone through the process of adapting and renewing records laws, while creating new processes to manage the messages themselves. 

Text messages might just be the bane of your records request workflow, but they definitely need to be dealt with. If you want to be proactive about text messages as they relate to the public record, there are ways to alleviate the strain.

Pro Tip #1: Know Your Laws & Make Policies

Even though every state has a different policy when it comes to text messages, the general consensus is that texts are public record. This list of public record laws across the 50 states gives a brief overview of how each state handles SMS. While some states do not specifically address text messages in their laws, some categorize them under other forms of electronic communication. Others simply state they are to be treated as any other form of record. Some states have no policy regarding texts at all; however, even if your state doesn’t explicitly address text messages, it is best to err on the side of transparency. Texting between government employees is not going to subside; in fact, it will only grow. If your state doesn’t have a rule for handling texts right now, you can be sure it will in the future. 

For Highlands County, Florida, their defining line
was that “text messages relating to public business are public records whether sent or received on a government or private cell phone.” If it relates to public business, then it is a public record. 

The Washington State Supreme Court determined their own definition as well
, having sparked a ruling from requests made in Pierce County, that “text messages sent and received by a public employee, in the employee's official capacity, are public records of the government employer—even if the employee used a private cell phone.”  

How should your agency move forward? Incorporate text messages from the start. Train current employees now, and every new employee coming in, that text messages should always be considered public record if they involve the public, whether on a public or private account or phone number. 

A good rule of thumb for defining a public text record: 

  1. Forwarded to a government account
  2. Sent during a meeting of the public body
  3. Sent to a majority of the public body

If you educate employees early and often on what is considered public record, then you can move forward much more easily, with everyone on the same page. 

Pro Tip #2: Do Not Delete

The first step in maintaining transparency is making sure officials do not delete their text messages. It should go without saying, but there have been enough cases to make it worth mentioning. 

Philadelphia Mayor Jim Kenney received due backlash
against the news he used his personal cell phone during his time in office and deleted all messages, regardless of nature, circumventing the city’s record retention policy. Whether those texts were open to public review cannot be determined. 

Former Missouri Governor Eric Greitens was sued
for denying the release of public records, those which were deleted. Greitens used a text-deleting app called Confide, and it was found so did other officials close to him. 

Boston Mayor Marty Walsh underwent scrutiny for deleting messages
. Per the article from Boston Magazine, “Destroying them is illegal under the state public records law, which calls for all electronic correspondence to be retained for at least two years, even if it contains no “informational or evidential value”. 

Overall, deleting texts goes against the public right to information, and officials or agencies could get into trouble for destroying those potential records. 

Pro Tip #3 Archive It!

The easiest and fastest way to process requests for text message records is finding a way to archive text records. Using a comprehensive archiving solution to store your text messages means the inevitable retrieval process is simple. No more wrangling. No more hours wasted on the search.

Integrating an archiving solution with your FOIA software alleviates the burden of tracking down text messages, while also creating a seamless workflow. Smarsh is the leading entity in electronic communications archiving, and NextRequest’s partnership with Smarsh enables you to respond to records requests faster than ever, without involving IT, or spending hours hunting down texts. 

When you use Smarsh with NextRequest
, your texts are automatically captured and catalogued by Smarsh. When a records request calls for it, a simple search will surface relevant text records, which you can then archive and export. Then you can upload the file to the request, and redact as you would any other document. 

Capture any or all electronic communication, including email, text, voicemail, instant message, and social media. Smarsh’s archive is secure and reliable, and is compliant with industry regulations, so you can take comfort that your data will remain private. 

The Best Way Forward

Dealing with text messages isn’t easy and it won’t get any easier. More and more communication is done via SMS, and it will only increase with time. Your best bet for remaining transparent is to find a way to manage texts in the most efficient way possible, lest you lose more work hours or deliver incomplete results. NextRequest’s integration with Smarsh is seamless, and will alleviate the pain of finding and bundling texts to make them ready for release.