According to Rep. Steven Johnson, R-72, the legislation came about after a Detroit Free Press article stated that top officials within the Michigan State Police (MSP) used an instant messaging app to send and permanently delete messages.
The MSP first admitted to using the application during a civil lawsuit and later shared that a lieutenant colonel, two majors and two first lieutenants were using the app on their state-issued phones.
To remedy that particular situation, the director of the Michigan State Police instructed officers to remove nonapproved applications from their state phones and seek authorization before downloading such apps in the future.
“There is no way to verify any information once it is permanently deleted,” Johnson said. “In this case, they were trying to claim they weren’t deleting many of these messages, but again there is no way to verify this.”
Another area of concern is maintaining transparency among state agencies, said bill co-sponsor Rep. Robert Bezotte, R-47.
“MSP obviously, being a law enforcement agency, everything’s gotta be upfront, transparent and available for the defense or the prosecutors to see what’s going on,” said Bezotte. “When looking at bills, I look at it as you know, is it fair? And this one certainly is fair.”
An additional worry, he said, is addressing the question of another app being used in a similar way.
“We covered the one that the state police was using but is there another app out there?” Bezotte added.
Johnson voiced a similar message, saying, “I think this is it, but who knows. We need to provide the people of Michigan with some level of confidence and not have things hidden like it was in this manner.”
As for how this affects FOIA, the law will not change how the state interacts with the FOIA process, said Caleb Buhs, the director of communications for the state’s Department of Technology, Management and Budget.
The way FOIA works is the department looks at information based on the content provided and not the channel it’s derived from, Buhs explained. Once that information is examined, a retention schedule is set.
“The bill sponsors saw in our acceptable use policy that it is not allowed to use unapproved apps in state government,” he said. “The bill is codifying this issue.”
Once the bill is passed, the department will be responsible for issuing directives for all state agencies regarding the use of any apps, software or other technology that prevents it from maintaining or preserving a public record on an electronic device.
For now, Buhs said, the department has not developed a process to share information about the use of prohibited apps with state agencies and employees. However, he suspects that email will be the best means of communication.
