Are Public Officials’ Text Messages Public Record?

Local governments are working to update their public records laws for the 21st century.

by Jay Meisel, Highlands Today, Sebring, Fla. / March 18, 2016

(TNS) — Some people who call Highlands County Commissioner Don Elwell on his phone may get a voice-mail message that he’s unavailable, but if he’s in a meeting he might be able to respond quicker to a text message.

Elwell said he’s aware that text messages involving official business are public records.

“I don’t delete text messages,” he said, adding that he doesn’t mind that text messages he receives and sends are potentially open for public scrutiny.

“Everything [in government] should be 100 percent transparent,” he said.

Twenty-five years ago, the public records law primarily dealt with written or typed documents involving official business. Then the law was amended to include emails and computer records.

Now local governments are attempting to grapple with issues regarding text messages.

A 2013 presentation to the Florida Association of County Attorneys states that text messages relating to public business are public records whether sent or received on a government or private cell phone.

However, text messages that are private are not automatically public records, even if sent on a county cell phone.

Gloria Rybinski, public information coordinator for Highlands County, said that county employees and officials who send or receive texts related to county business are asked to screenshot the texts and send them to the county.

Those texts, based on certain criteria, are kept for varying amounts of time that could be for years, she said.

Rybinski said a text from an employee to a supervisor about being late to work would not be retained very long. But one in which, for example, a county employee makes a budget recommendation, would be kept a year or longer.

Still, she said, the county doesn’t have an official policy relating to texts that has been approved by the Highlands County Commission.

“We are actively working on it,” she said, adding that one will likely be presented to the commission in the not-too-distant future.

Rybinski said the county has received only one public records request for a text message. As it turned out, the text message did not relate to county business and the phone company hadn’t retained it.

Sebring City Administrator Scott Noethlich said the city is developing a policy involving the city’s response to any public information requests that involve text messages.

Noethlich said the city has only received one such request, and that involved text messages sent for personal reasons rather than city business. The cell phone company said the person making the request had to seek a court order.

Issues of technology complicate the city’s ability to respond to such requests, Noethlich said. There’s no software on city-issued phones that sends copies of text messages to a server where those messages could easily be retrieved, he said.

And even if the city-issued phones contained such software, that would not apply to privately-owned cellphones from which someone would have sent a business-related text message, Noethlich said.

Moreover, he said, as far as he knows, cell phone companies aren’t required legally to retain text messages.

The Highlands County Sheriff’s Office phones aren’t set up where employees can send text messages and employees are discouraged from using private phones to send text messages relating to business, said Liz Peralta, who in charge of the records division.

Peralta said if an employee receives a text message relating to business or sends one relating to business on their own phone, they must capture it and send it to the sheriff’s office.

Meanwhile, Elwell said that he doesn’t get a lot of text messages. Most are from residents seeking road repairs or complaining their garbage wasn’t picked up, he said.

©2016 the Highlands Today (Sebring, Fla.) Distributed by Tribune Content Agency, LLC.