Technology advances so rapidly that public policy often can’t keep up. That’s what’s happening with electronic messaging, particularly as it pertains to texting and public open records law.
Texting has quickly become pervasive in society, and many public officials find it a useful way to communicate with staff, constituents and other officials. But governments and courts now find themselves in something of a dilemma.
When public business is discussed in a communication, it’s understood that it become subject to disclosure under state law. The tricky part is when the text is sent or received on an official’s private cellphone.
The state Court of Appeals has ruled that who owns the device doesn’t matter; if public business is discussed, then the text is a public record and should be disclosed. The case that established that involves Pierce County Prosecutor Mark Lindquist, who is fighting to withhold calls and texts sent from his personal cellphone that he acknowledges pertain to public business. That case might yet be appealed to the state Supreme Court.
Although at least one court in another state has ruled that texts from private devices don’t need to be disclosed, the trend seems to be going the other way. Courts have recognized that if officials are allowed to skirt disclosure laws by conducting public business on private devices, then they’ll start doing more business that way. That would effectively gut open records laws and allow “shadow” governance free from public scrutiny.
Cities and states all over the country are struggling to come up with policies and procedures to handle public officials’ text messages. Few have any consistent way to retrieve or store texts, and Tacoma is no exception, according to a report by The News Tribune’s Kate Martin. The texts are disclosed in ways that include a spreadsheet program, text files and even photos.
Citizens and media outlets trying to access records have to run a gantlet of local governments’ different policies and procedures. Everett might have the most drastic way of dealing with the problem: Texting for city business isn’t allowed without the mayor’s permission.
That might go a little too far, but it illustrates the challenge governments face in figuring out the best way to retain text messages for disclosure purposes. They need to come up with effective policies hecause it’s required under the state Public Records Act, which makes no distinction between electronic communication and more traditional records.
Governments are sure to find themselves the subject of more requests for text messages. If they don’t want to face liability issues, they need to move more quickly on figuring out how to save and disclose those requests than many of them have been.