Text messages as public records: a new set of issues


Published: Sunday, March 10, 2013 at 5:34 p.m.
Last Modified: Sunday, March 10, 2013 at 10:14 p.m.

Most people who are used to sending text messages fire them off without a second thought.

Facts

Local texting policies

Alachua County: The county bans its employees from texting about government business, although County Attorney Dave Wagner said in a February commission meeting that some employees have done so on county-issued phones. The majority of employees use personal phones, not county-issued ones, professionally as well as privately.
The county has no texting policy in place for its commission, although it is currently considering establishing one.
City of Gainesville: City employees are permitted to text about city business as long as they comply with the public records law and state retention schedules, said Stephanie Marchman, senior assistant city attorney.
They are discouraged from conducting city business on personal devices, especially since the city systems are backed up more reliably, she said.
The city commission doesn't have a personal policy on texting and has not yet discussed one, Clerk of the Commission Kurt Lannon said. They can forward individual texts related to city business to government staff, although it is rare for them to convert texts to emails to do so, he said.
Alachua County School Board: The text-messaging function is blocked on school district-issued phones, making the issue a moot point, said Jackie Johnson, spokeswoman for Alachua County Public Schools.

But for public officials, the technology brings more than just convenient communication. It also raises concerns and possible conflicts between personal privacy and open records laws.

In recent years, text messages have figured prominently in some high-profile official misconduct investigations. They revealed key details of former Detroit Mayor Kwame Kilpatrick's infamous time in office, for instance.

Closer to home, a probe showed text exchanges between Orange County commissioners and lobbyists while the board was considering a sick-pay initiative last September.

As this week marks Sunshine Week, which emphasizes open government and freedom of information, text messaging is becoming an increasingly important and controversial issue in the realm of public records.

The still-unfolding Orange County “textgate” scandal, when commissioners texted lobbyists about a sick-pay initiative requiring many employers to offer paid sick time that was ultimately voted down, has led to a Florida Department of Law Enforcement investigation.

It has also prompted Alachua County to review its own text-messaging policies.

The county already has a ban on texting about government business that applies to its employees, but it doesn't have a policy for its commissioners.

“I think you need a policy,” County Attorney Dave Wagner said at a Feb. 5 commission meeting. “I think you need to talk about it and decide what it's going to be, because that's part of the grappling that's going on down in Orange County among the commissioners.”

Uncharted territory

For Alachua County, as well as many other public entities, establishing a text-messaging policy for elected officials is uncharted territory.

A recent Gainesville Sun public records request for commissioners' text messages was the first such request the county has received, Wagner said.

Staff discussed the request with the commissioners to ascertain whether they had sent or received text messages pertaining to county business during a specified time period.

While this may have been Alachua County's first such request, it won't be its last, said Barbara Petersen, president of the First Amendment Foundation. These requests are becoming more frequent.

Petersen said it is not surprising to her that the county doesn't have a texting policy for commissioners, since the use of texting has risen exponentially in recent years.

Nor was the response: The commissioners were told to search their personal cellphones then tell county officials whether they had any texts that were public record.

“I think that they have to think about this in very practical terms,” she said of establishing a texting policy. “It's not as hard as it seems,” she added.

What is not practical is to prohibit commissioners from using their personal phones for public business, she said. Emailing texts to themselves, while an extra step, is a fairly reasonable solution.

In an emailed response to the The Sun's public records request, Wagner said Commissioners Charles “Chuck” Chestnut, Mike Byerly and Lee Pinkoson had not sent or received any county-related text messages during the specified time frame.

Chestnut said he decided not to text about government business because it can be difficult to remember who, how and what you text. It's easier to avoid it altogether, he said.

“There's no way you can remember everything,” he said. “I just want to do the right thing, and the right thing is to not even get involved in texting.”

Commissioner Susan Baird had one relevant text message, sent from Wes White of Haile Plantation, that read “15k to move,” according to Wagner's email.

The text referred to the price of moving a sign, which came up during a Feb. 5 commission meeting, she said in an interview.

Robert “Hutch” Hutchinson may have several text messages related to county business, which could cost The Sun up to $150 in special service charges to acquire, according to Wagner's email.

To complete the public records request, the county could search for and copy any of Hutchinson's relevant text messages and submit those copies to The Sun.

Hutchinson, however, believes the person requesting the records should review his phone personally.

“When I think of what the voters want me doing, it's not sitting here going through old messages and stuff. I barely have time to deal with the basics of being a good commissioner,” he said.

Hutchinson said he would prefer any citizen who makes a records request go to his office and review the messages on his phone.

He doesn't have a problem with citizens reviewing his personal cellphone, he said, because he has nothing to hide. If someone used personal information gleaned from his phone in a harassing or damaging way, he would handle it through legal channels.

Public records requests for text messages require that citizens grant officials a degree of trust in their credibility, he said.

Could they be lying about the texts they received or deleted ones they don't want the public to see? If a commissioner accidentally loses or breaks his or her phone, will some people wonder whether it was done on purpose to try to conceal texts from public view?

“It's even more than an honor system,” Hutchinson said. “If we're the custodian of our phones, have we messed with the data? Who knows?”

Pinkoson said he might be uncomfortable with handing his phone over to somebody else because it contains personal correspondences. However, he understands people may be suspicious that commissioners aren't being as transparent as possible about their texts.

“There's a balance there, and somehow we're going to have to come up with a solution,” he said.

Pinkoson said he isn't sure he understands the difference between a text message and a phone call, content-wise, which is an issue that has come up during the commission's texting debate.

But because texts are considered public records, officials need to treat them as such and evolve with the technology, he said.

Petersen, of the First Amendment Foundation, considers the argument that text messages should not be considered public records, which has come up occasionally in recent years, to be “baloney.”

“The fact is your text messages don't disperse into thin air once you hit send. They're still on your phone,” she said. “That's just a terrible idea, and I think it flies in the face of the public records law and the whole purpose and intent of the public records law, which is oversight and accountability.”

Uncertain implications

Alachua County bans business-related texting by employees, whether they have a government-issued or personal cellphone. But the effectiveness of such a ban is questionable.

“We know for a fact that county employees with county-provided cellphones are occasionally and inadvertently sending text messages,” Wagner said at a Feb. 5 commission meeting.

A texting ban could also diminish productivity, said Hutchinson, who opposes such a policy.

“It's just a much more efficient way to do business,” he said of texting. “It's a quick way to get somebody's attention.”

Baird pointed out that there are always methods elected officials can use to conduct illicit dealings without being caught through public records, such as by meeting them in person.

“Do we go ahead and put a camera in our heads so we know everywhere we go and who we speak to so we know if we end up talking outside the sunshine?” she asked.

Another complicating factor is that people can reach incorrect conclusions based on text messages' timestamps, Hutchinson said. Just because he received a text during a commission meeting doesn't mean that's when he read it, he said.

Likewise, just because officials have their phones at the dais doesn't mean they're using them to text about government business during a meeting.

Baird, who says she uses texting for short, logistical messages such as “Meet you at five,” said texts she receives during meetings usually aren't about government business, but rather are from customers or friends who don't realize where she is and what she's doing at that moment.

With her work and family life, she needs to be able to tell people who contact her that she'll be out of reach for the next several hours but will get back to them when she's done.

Chestnut said seeing a commissioner texting during a meeting looks suspicious to him, even it's being done just as a citizen.

“If you're in a meeting, you should be dealing with the issues in the meeting, not texting,” he said.

Petersen said it is irritating to address an official while his or her head is down, thumbs flying across a keypad.

“There's a certain level of just politeness and common decency and civility,” she said, “and I think our elected officials have to start remembering a little better who they represent.”

Keeping tabs on texts

Text messages may be public records, but it can be tricky to keep track of them. Personal phones pose a considerable challenge because they mix the personal and the professional.

At the Feb. 5 commission meeting, the board discussed the possibility of designating commissioners the sole custodians responsible for retaining county-related text messages on their phones, which is what they currently do in the absence of a specific policy.

Alternatively, they could require commissioners to forward texts to the board's online email archive, which is publicly available at alachuacounty.us.

Hutchinson suggested the county could have a custodian responsible for maintaining a texting archive for the commission.

Wagner cautioned, however, that a policy depending on an individual to do something all the time, such as forwarding texts to an archive, could put the county in a vulnerable situation. The safest course is not to text about government business, he said.

Contact Morgan Watkins at 338-3104 or morgan.watkins@gvillesun.com.

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