Texting and Public Records Law

The State Records Center loves the UNC School of Government blog, Coates’ Canons, as the careful reader may gather from this third post in a row pointing to particularly illustrative information. Kara Millonzi of the School of Government recently wrote this helpful blog post about texting and the Public Records Law. I am often asked what local government agencies should do about employees who text and Kara does a terrific job of illustrating why – there simply is not a “cure-all” blanket solution or retention for text messages:

“Note that the fact that these messages were sent or received from the manager’s privately-owned smartphone is not relevant to the inquiry of whether or not the texts are public records. Texts may be public records even if they are sent or received on an employee’s or official’s personal device. It is the content of the messages that is determinative.

Public record text messages must be retained based on content of message”

So we as government employees know that text messages are public records if they were made or received as a transaction of public business. What’s next? I second Kara’s (thanks for the shout-out!)  recommendation to review the following Electronic Records Section guidance documents:

Best Practices for Electronic Communications Usage in North Carolina: Text and Instant Message

Best Practices for Electronic Communications Usage in North Carolina:
Guidelines for Implementing a Strategy for Text and Instant Messages

In particular, local government agencies must figure out a technical solution for how they will retain text messages that are public records. As stated on page 8 of “Best Practices for Electronic Communications Usage in North Carolina: Text and Instant Message”:

NOTE: Agencies and employees should not rely on service providers to provide records created by text/IM. Service providers may keep their own records of text and instant messages but they are not automatically obligated to provide a copy of those records to government entities… Employees are responsible for managing these records and ensuring that they be retained longer if the records retention and disposition schedule requires a longer retention period.”

An interesting question that may be open to debate is whether or not these texts from Kara’s example must be retained as texts:

Citizen:

yeah. btw–Y potholes on Jones St. not fixed yet? ruining my car shocks. mayoer promised theyd be fixed 6 mnths ago. As usual LOPSOD

Manager: 

BMY publ. werks crew painfully slow. will direct to fix asap

Citizen:

Thx. it’s doog to know peeps in high paces      :-}

Manager:

had 2 pull rank. crew will get there early next week at latest.. ITMT take Smith st.

As Kara correctly interprets the Municipal Records Retention and Disposition Schedule, these texts constitute a Citizen Complaint or Service Request, which has a disposition instruction of “retain in office for 1 year.” What if this particular manager works in a city with a formal system in place that handles Citizen Complaint or Service Requests? Can the manager enter the relevant information from the text into that system, retain the resulting record for 1 year, then delete the text? We probably will only know for sure if this matter were challenged in court. In the meantime, it is best to answer these questions ahead of time with some sort of policy and be consistent.

If you have a smartphone, consider checking out Tom’s post about the Sunshine Center of the North Carolina Open Government Coalition’s app.

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