Yes, That Text Message Is a Public Record

When you think of open records laws at the local government level, items like budget reports or email exchanges among public officials probably first come to mind on the list of things that need to be archived.

But what about text messages? Sending messages between phones is an increasingly important way for public employees and leaders to communicate official business and in most cases, those are considered public records that need to be preserved, too.

It’s a challenge facing local governments across the nation, especially in states and localities with strong open government statutes.

In Washington state, which has some of the strongest records-retention rules in the nation, the city of Tacoma has been trying to figure out how text messaging fits into its compliance. The News Tribune reported in September that the state’s third-largest city had “no consistent method to ensure the preservation and disclosure of text messages.”

Roughly 15 miles away in the city of Bonney Lake, the local government there implemented a technological solution to preserve text messages on smartphones issued to its workers by the municipal government.

“It’s becoming a critical business system that people are now starting to realize that: ‘I need to start archiving these,’” Chuck McEwen, Bonney Lake’s information services manager, said in an interview.

While some local governments have been proactive on the text messaging archiving quandary, McEwen said others might be dragging their feet and pretending it’s a tech challenge they don’t need to worry about.

“I think that’s really scary to put those blinders on,” he said. “If you aren’t retaining [text messages], you’re doing a disservice to your citizens by not protecting those records.”

Bonney Lake’s experience retaining text messages started with its police department in the late 2000s, when officers stopped carrying pagers and started communicating via text messaging.

“It’s a great way for our patrol officers to update their patrol sergeant,” McEwen said. “It’s quick simple messaging. Everyone loves it. They don’t send emails anymore. They send texts.”

At that time, Bonney Lake operated a BlackBerry Enterprise server to archive text messages on city-issued phones. But hosting an in-house server can eat up valuable municipal IT resources.

In 2011, around the time that Bonney Lake shifted to smartphones, the city turned to Portland, Oregon-based Smarsh for a solution for its text messaging archiving. “It’s one thing to take off our plate,” McEwen said, pointing out that for a municipality with limited IT resources, Smarsh is cost effective.

Founded in 2001, Smarsh helps public-sector organizations with their records retention challenges, whether it’s archiving social media posts and instant messaging or preserving more traditional communication methods like email.

“It’s a platform that continues to grow,” David Ambrose, Smarsh’s director of technology partners, said in an interview. “We like to say that we archive everything.”

That includes text messaging.

For Bonney Lake, Smarsh’s text messaging archiving solution is “very easy and painless,” McEwen said, noting that most of the heavy lifting involves setting Smarsh up on new city-issued phones.

“This is a really quick way to deploy a solution and it’s not dependent on the size of the organization to set up the type of services,” Ambrose said. “It could be an organization of 10 or an organization of 10,000.”

When McEwen’s IT shop needs to recall certain text messages—usually because of a public records request or for legal discovery—Smarsh’s platform is searchable for specific time periods.

On an average month, Bonney Lake receives roughly 30 public records requests, according to McEwen. About five of those requests ask for text messages.

Beyond public records requests and discovery associated with legal proceedings, McEwen said that he occasionally gets requests from city employees saying they need to recover a text from weeks or months earlier because there was an important piece of information in it.

When text-message archiving was being implemented in Bonney Lake, McEwen said there was “a little pushback” from employees. But there’s no expectation of privacy when you’re using taxpayer-funded communication tools.

“If you’re using the city’s information services, it’s going to be archived,” he said. De minimus use is allowed, McEwen said, because it would be difficult and time-consuming to police such low-impact personal use.

But that doesn’t mean a personal text message to a spouse about something relatively trivial, like an inquiry about the timing of dinner, will be retained forever.

A text about setting up a coffee meeting between two public employees, however, might have to be archived temporarily.

And texts that discuss more substantial municipal business will most likely be retained for a much longer period of time—in some cases, in perpetuity.

Different jurisdictions inevitably will have different records-retention standards, or different interpretations of archiving mandates from their respective state governments.

For Smarsh, the patchwork quilt of different compliance standards for local jurisdictions doesn’t matter too much since its consolidated platform can be tailored to the specific archiving needs of the company’s clients.

“We want to help automate those processes,” Ambrose said. “We want to archive in a thoughtful way.”

(Image via igor.stevanovic / Shutterstock.com)