Government officials are more frequently conducting business in multiple forms of electronic communications, including texting. Accordingly, most states have moved to include records of these electronic communications as items subject to request under local Sunshine laws.
Here’s a guide on public record treatment of texting across the U.S.
1. Alabama
The Alabama Open Records Law provides access to public records which includes electronic communications such as SMS messages.
2. Alaska
The Alaska Public Records Law does not specifically identify or address SMS, but there is no evident argument that would exempt texting from disclosure under the public records law.
3. Arizona
The laws that apply to email in Section III (D) in the Arizona Open Government Guide would likely apply to text messages and instant messages.
4. Arkansas
The Arkansas Open Government Guide states “The FOIA defines the term “public record” to include “electronic or computer-based information” as per Arkansan FOIA.
5. California
The California Open Government Guide states that text messages and instant messages are public records. “If it pertains to the public’s business and it was prepared or used by a public employee to assist in carrying out his or her public duties, it is a public record.”
6. Colorado
The Colorado Open Records Act states that text messages are treated as public records.
7. Connecticut
While the Connecticut’s Freedom of Information Commission does not specifically address text messages, they should be treated in a way that emails are treated as public records.
8. Delaware
The Delaware Freedom of Information Act (FOIA) does not specifically address text messages, but “public records” includes all information “regardless of the physical form or characteristic”
9. Florida
No state law has specifically addressed text messages as public records. However, in 2009, the Florida Attorney General Office’s announced that it would treat text messages as public records.
10. Georgia
The Georgia Open Records Act states that text messages are not treated any differently than written correspondence and is subject to the Act’s disclosure requirements.
11. Hawaii
Under Hawaii Sunshine Law, there is no distinction between the treatment of electronic messages and paper documents in terms of storage and retention.
12. Idaho
The Idaho Public Records Law Manual treat electronic messages the same as other records in terms of retention and back-up.
13. Illinois
The Illinois Open Government Guide states that text messages are treated as public records as long as they have been prepared by or for, or have been or are being used by, received by, or are in the possession of, or under the control of any public body
14. Indiana
No statute specifically addresses text messages but the Indiana Open Government Guide states there is no reason to treat these messages any differently from any other record under the law.
15. Iowa
There is no specific statutory provision covering text messages or instant messages.
16. Kansas
There is no applicable lawthat currently addresses text messages as public record.
17. Kentucky
The Open Records Act and related public access and retention requirements apply equally to electronic and paper records.
18. Louisiana
Text messages are treated the same as other paper records under the Open Records Act and are subject to the Act’s disclosure requirements.
19. Maine
The Maine Open Government Guide states that text and instant message would be treated in the same fashion as other documents, so long as the e-message was received or prepared for use regarding the transaction of public or governmental business.
20. Maryland
No statutory or case law address the issue of text messages as public records.
21. Massachusetts
Text messages are public records subject to the requirements of Public Records Law. The broad definition of ”Matter” includes: any electronic communication including, but not limited to, electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network, whether by computer, telephone, or any other device or by any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system.
22. Michigan
Though the state FOIA does not expressly define text messages as public records, the Wayne County Circuit Court issued an order in a FOIA case requiring a third-party service provider to produce the text messages that eventually caused the resignation and conviction of Detroit Mayor Kwame Kilpatrick.
23. Minnesota
The Minnesota Data Practices Act states that the format of the data is irrelevant if these messages contain government data. Such data must be available to the public. A guide to requesting data from a Minnesota government entity is available here.
24. Mississippi
Text messages are not explicitly addressed by the Mississippi Public Records Act. However, it is generally accepted that such messages fall within the definition of public record contained in Miss. Code Ann. § 26-61-3(b)
25. Missouri
There is no case law on this issue. However, records retained by a governmental body are public records under Missouri Sunshine Law.
26. Montana
No statutory or case law on this issue. Presumably they would be treated like e-mail and are subject to the disclosure requirements of the Montana Open Records Law.
27. Nebraska
Text messages and instant messaging are not addressed in the public records statutes but an attorney general opinion states electronic communication between elected officials and governmental staff are public records.
28. Nevada
The Nevada Open Government Guide states that although there is no statutory or case law addressing the issue, there is no case law to indicate that electronic information should be treated differently
29. New Hampshire
New Hampshire’s Right to Know Law states that text messages are public records. However, if the message does not reveal public matters, the message probably would not need to be disclosed.
30. New Jersey
No statute specifically addresses text messages as public records but the New Jersey Open Government Guide indicates that there is no reason to believe that they would be treated any differently than e-mail as a government record.
31. New Mexico
The New Mexico Public Record Law rules text and instant messages that relate to public business and are stored on public databases or public equipment as public records.
32. New York
New York’s Freedom of Information Law does not address text messages or instant messages.
However, the statute defines “record” to include information in any physical format whatsoever.
33. North Carolina
The North Carolina Open Government Guide states that text messages are no different from other records. If they are not “of and concerning” public business or they concern public business that otherwise is exempt, they would not be subject to disclosure.
34. North Dakota
The North Dakota Open Records Law to text messages so long as the they have been received or prepared for use in connection with public business or contains information relating to public business.
35. Ohio
The Open Government Guide states “The Ohio Supreme Court has not determined whether text messages and instant messages are public records, but nothing in existing laws would appear to categorically preclude them.”
36. Oklahoma
In a recent opinion, the Oklahoma Attorney General specifically included text messages in the definition of record in the Open Records Act.
37. Oregon
The Oregon Open Government Guide states that a text message or instant message relating to the public’s business would be treated the same as any other public record under ORS 192.410 and 192.420, and would be subject to the same disclosure provisions and exemption claims.
38. Pennsylvania
The Pennsylvania Open Government Guide indicates that text messages are presumptively accessible unless the governmental agency proves some exemption from disclosure applies.
39. Rhode Island
There is no statutory or case law addressing this issue.
40. South Carolina
Under the South Carolina’s FOIA, If a text or instant message is “prepared, owned, used, in the possession of, or retained by a public body” it is by definition a public record.
41. South Dakota
The South Dakota Open Records Law treats text messages the same as emails, and are subject to disclosure requirements of the Act.
42. Tennessee
The Tennessee Open Government Guide states that text messages will likely be treated the same as email messages for purposes of public records.
43. Texas
The Public Information Act covers virtually all information possessed by governmental bodies and thus is subject to the Act. Tex. Att’y Gen. ORD-12267 (2010).
44. Utah
Under Utah’s Government Records Access and Management Act, text messages or instant messages regarding a public matter on government hardware are presumably public unless otherwise specifically exempted.
45. Vermont
Vermont’s Right to Know laws does not specifically address text messages; however, it is likely that such messages would fall under the statute’s definition of a “public record.”
46. Virginia
Text messages fall within the definition of “public record” and are subject to disclosure requirements of Freedom of Information Act.
47. Washington
No statutory or case law addressing this issue, though the definition of “public record” is broad enough to encompass text messages.
48. West Virginia
The West Virginia Open Government Guide states that no court decisions have been made regarding text messages as public records, but such messages can viewed in the same light as emails.
49. Wisconsin
Wisconsin has not addressed this issue, but the Open Records law extends to all material on which information is recorded or preserved, “regardless of physical form or characteristics.”
50. Wyoming
No Wyoming cases have yet addressed this issue, but the broad definition of a record would seem to include text or instant messages.
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A special thanks goes to RCFP and the other sources mentioned at the bottom of the Infograpic for their contribution to enabling this post.
