US state court rulings on public text archiving laws

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With the advancement of electronic communication technologies, the communication compliance rules have significantly changed how public officials need to communicate. Generally, if the text messages contain any government-related information, they are considered public records and fall under the regulations of public record disclosure.

There are different public text archiving laws specific to each 50 US state in the USA, and the Freedom Of Information Act (FOIA) provides rights to anyone right to make requests for public records. However, different US states consider text messages and other public officials’ electronic communications differently and have their own retention requirements.

Public text archiving laws of different US states

For example, in California state, the California Supreme Court held in City of San Jose v. Superior Court specified that public officials’ emails and text message communications should not be removed from disclosure under the California Public Records Act if they are using a personal account or device. Rather, if the content of the text messages or emails can be considered a ‘public’ record, those communications should be included for disclosure.

Also, the text public text archiving laws of West Virginia covers the disclosure of text messages. However, according to the  West Virginia Open Government Guide, there is no court decision to consider text messages as public records. Therefore, text messages of public officials’ personal devices may not require disclosing under the states’ FOIA rules.

However, some cities like San Jose argue that they are not required to disclose communications of public officials if they are on their devices as the city privacy law prevents disclosing personal text messages and email messages. However, the California Supreme Court specifically says that public record disclosure should not be affected by privacy laws.

The general definition of “public records” is “any writing containing information relating to the conduct of the public’s business, including but not limited to court records, mortgages, and deed records, prepared, owned, used or retained by a public body regardless of physical form or characteristics.”

It means that public records are records created, owned, or used by any public body like governmental agencies, hospitals, courts, police stations, and financial institutions related to public businesses like court hearings, real-estate records, immigration records, criminal records, etc. Public records are usually maintained in physical paper form. For example, a marriage certificate, approval letters, criminal records, etc., and they can be recorded in internal software systems, internet or any other source. Therefore, if the text messages or emails contain such information, they will be classified as ‘ public records.’

The FOIA Public records disclosure rules

The Freedom of Information Act, which Congress passed in 1966, enables anyone, including non-citizens, to request information from a Federal agency. This information can vary according to the US state. In general, the records include books, papers, maps, photographs, machine-readable materials, and information stored electronically such as websites, blog posts, chat logs, email, and SMS messages. Therefore, government bodies that store and process such records need to capture and archive electronic communications for communication compliance and meet the FOIA retention requirements.

The FOIA and Public records rules are generic. For example, According to the California FOIA Laws, public records are defined as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”

“Writing” means any handwriting, typewriting, printing, photo stating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of how the record has been stored. However, “purely personal information” does not fall into this category.

In California, anyone can request public documents without declaring the purpose of the request.

The court ruling on disclosing public records

According to the information defined as disclosure in each state, the information anyone can request for disclosure varies according to the US state. But the court translated it to include text messages, and emails fall under this category. The recent court ruling states that FOIA can disclose email messages and text messages saved on personal devices related to public records. So even in states where there are no specific mobile text archiving regulations – it might be required and shared as part of FOIA requests.

A certain record becomes a public record if it satisfies two conditions.

  • The record must include public or government-related communications
  • The record must have been sent or received by a public body or kept in a public body.

However, there has been an argument that public officials are not public bodies; thus, the records in personal accounts should not be considered public records. However, FOIA later rejected that argument, and the court accepted that public bodies eventually consumed those communications. Therefore, the conclusion is that the communications kept in public officials’ accounts related to public business will be subject to FOIA disclosure. Therefore, even if any state or city does not consider their public records, FOIA will disclose this information if anyone requests it. Thus, this court ruling will help continue providing access to the required information regardless of the impacts of the technological advancements.

Even if the court ruling allows disclosing information on private devices, FOIA claims that it does not invade the privacy of the public officials because FOIA has privacy safeguards to prevent such disclosures. For instance, if the information is highly personal or the right to privacy outweighs any public disclosure of information, FOIA will exempt disclosing such requests.

How can TeleMessage help to archive electronic communications?

As government offices are transforming to digital environments, without any robust call recording and archiving solution, it will be difficult to meet FOIA archiving and FOIA retention requirements. Also, one of the most important capabilities when choosing an archiver is if it can differentiate private messages from work-related communications. As a solution to these requirements, TeleMessage offers TeleMessage Mobile Archiver, which allows organizations to capture voice calls, monitor text messages, multimedia, and documents, and archive them according to FOIA compliance requirements.

Also, the TeleMessage Mobile archiver consists of archivers for different instant messaging apps such as WhatsApp archiver, WeChat archiver, and Telegram archiver, which are identical to their regular applications. These archivers can upload the records into an enterprise archiver and private messages from business-related messages from BYOD devices.

About TeleMessage

TeleMessage offers employees the freedom to use modern messaging applications on the mobile and desktop. Our mobile archiving products securely record content from mobile carriers and mobile devices, letting companies meet recordkeeping regulations and compliance requirements.

With multiple archiving solutions, you can always find the right tools or blend for your requirements:

TeleMessage offers cross-carrier and international mobile text & calls capture and archiving for corporate and BYOD phones. Visit our website at www.telemessage.com to learn more about our mobile archiving products.

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