Public Access to Officials’ Text Messages: Even Where Law is Clear, Practical Problems Derail Access – Says New Nationwide Research Sponsored by D.C. Coalition

21st Century communications tools take many forms: public figures’ Tweets are perhaps all too easy to find. But what if officials hid important business in an exchange of text messages (electronic mail typed out on smart phones and sent through cell networks)? Could citizens ask for those electronic scratchings buried on individual phones or on a carrier’s server, just as if they were papers in a file folder downtown?

Texts by the cities’ mayors have figured prominently in the news in Detroit and Chicago.

As part of its advocacy for open government in the District of Columbia, the Coalition posed this question about access to its pro bono counsel, the law firm of Ropes & Gray LLP. After a nationwide review, the results are now available in an article by firm attorney Helen Vera in the spring 2017 issue of the Communications Lawyer, the journal of the Forum on Communications Law of the American Bar Association.

The article, based on research by Vera and a team at the firm, describes state freedom of information laws, regulations, and policies, and also evaluates what’s happened in the practical application of these laws to text messages.

The first section surveys the current state statutory and administrative landscape in the applicability of state open-records laws to text messages, concluding that, in most states, there is a clear right to access text messages from public officials, even on personal cell phones or devices, as long as the messages otherwise meet the statutory definition of a public record. A second section on state attorney general and other agency opinions shows these reach similar conclusions.

Practical access is the focus of the third key section, covering dramatic court cases to compel access and also legislative tweaks to records laws, balancing officials’ howls of privacy and public demands for sunshine. Over and over, logistics, including brief retention of texts by cell carriers, have put obstacles in the path to accessing texts as public records.

Even if the law may be clear, Vera writes, “the temporary, extemporaneous quality of text messages presents challenges of compliance with open-records laws, particularly to retention and preservation requirements…[A]s the experience in the states demonstrates, the statutory right faces ongoing resistance and confusion.”

(Reporter Martin Austermuhle four years ago described in DCist the situation in the District--finding practical obstacles as the new research notes in many other places.)

The article concludes with a survey of issues on the horizon, such as the treatment of social media accounts and messaging apps (especially those allowing users to set messages to self-destruct after a short period).

The Coalition is grateful to Helen Vera and her colleagues at Ropes & Gray for the research. Their report with its wealth of detail on the action nationwide should be essential background in ongoing advocacy for open government laws and policies that adapt to preserve public access as technology changes.