Evolving State and Federal Message Archiving Requirements

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Our era’s goal of ensuring increasing transparency in government continually motivates expansion of Federal and state requirements in archiving messaging records and in making them more accessible. We highlight below some of the more significant and progressive recent state and federal initiatives and court rulings.

The movement to ensure government disclosure began in 1976, with the passage of the federal Sunshine Act, requiring every portion of every meeting of an agency be open to public observation. Since then, several laws have also been implemented – The Freedom of Information Act (FOIA), Federal Rules of Civil Procedure (FRCP), Federal Information Security Management Act (FISMA).

Today, public records not only include those that are generated during a meeting. The federal government, Congress, federal commissions, and other legally constituted federal bodies that allow the use of any digital correspondence platform such as text messaging and chat apps must manage the messages through such platforms accordingly.

However, many public officials undermine the implication of message archiving on their operations and public reputation. In Washington state, for instance, officials looking for records of employees’ text messages were surprised to learn from Verizon that text message content is maintained for only three to five days from the date of transmission/receipt.

Another example is the Environment Protection Agency, which was rebuked by a federal judge in 2014  when it failed to retain the text messages of its top administrator, Gina McCarthy. These cautionary tales reaffirm that public agencies should not assume that their service provider is sunshine archiving their data on their behalf.

The FOIA, along with other related statutes, states that text messages are considered public records related to the work of the agency – obligating agencies to save these records. To quote the News Tribune, “They [public offices] can’t use ignorance as an excuse anymore, and shame on any that are using text messaging instead of emailing as a way to evade public records requests.”

Whether it’s in the form of email, a tweet, Facebook post, or text message – if the content of the message is related to agency’s work – the FOIA and other rules apply.  On a state level, several court decisions and state laws are being voted for in favor of disclosing agency-related text messages.

In Arizona, for instance, the state law requires all public officials to maintain records and preserve messages related to public business done on personal devices. If an official deletes information that is not “purely private or (of) personal nature,” they may be charged with a Class 4 felony.

In California, a recent ruling from the Supreme Court states that “Texts and emails sent by public employees on their personal devices or accounts are a matter of public record if they deal with official business.” According to LA Times, the court ruled in a case brought by Ted Smith, a community activist who filed public records request eight years ago for the communications of San Jose City Council members and staff about a proposed downtown development.

Over 40 years after passage of the FOIA, its ramifications for sunshine archiving of mobile messaging is still making news, motivating legal passage of related legislation and swaying legal verdicts. With a good mobile messaging archiving solution, the preservation of email, social media, instant messaging, text messaging, and other forms of digital correspondence becomes more manageable and efficient. Only by employing robust and comprehensive technology can government offices be prepared for litigation and remain compliant with federal and state regulations.

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