City officials can get around public-disclosure law—which says that all communications by city officials on public issues are subject to public records requests —by sending text messages instead of emails, even though texts are technically subject to the same disclosure laws as all other communications by public officials.
In an email response to a public records request for Seattle City Council Member Tim Burgess’ text messages—an experiment I decided to do after receiving numerous responses to questions I’d asked of city officials via text, targeting Burgess because he texts frequently—City Clerk Catherine Moore noted that Burgess “did not retain copies of text messages sent or received for [the] time period” requested, and that “Message content is unavailable from his cellular carrier. As per AT&T policy the content of SMS messages (text) and MMS (multi-media text messages) are not stored by their systems.”
Moore’s response did include a copy of Burgess’ cell phone bill. A couple of phone numbers that jumped out: Local political consultant Christian Sinderman and council central staff director Ben Noble.
Moore also attached a copy of an affadavit by AT&T records custodian Frank Yanez stating that “The actual content of text messages is not stored. Those records are not available. The stored records of AT&T are a date/time and a to/from whether it’s a telephone call, a text message, or a data usage record.”
City Attorney Pete Holmes’ office—which oversees public records law for the city—says that text messages sent by public officials are subject to public disclosure. However, Washington state public-disclosure law did not anticipate text messages, a form of communication that exists only in users’ phones. Holmes’ spokeswoman Kathy Mulady says she didn’t think the city had ever provided text messages in response to public records requests in the past.
Am I saying Burgess was intentionally trying to skirt the law? Of course not. (As I said, I only targeted him because he’s such a prolific texter). But given city officials’ increasing use of texts to communicate with staff, reporters, and each other, it’s alarming that this form of communication isn’t subject to the same disclosure laws as letters, blog posts, and emails.
