[Editor's Note: Commenter Insideago wanted to hear LawNerd's take on Erica's story about public disclosure law and text messages. And so, here's LawNerd.]
The Public Records Act (PRA) was originally enacted by public initiative in 1973, long before personal computers were a twinkle in our eyes. Now, almost all public records are created and kept electronically. In 1973, written communication was by letter. Today, most written communications are email. In 1973, a draft letter or report went into the wastebasket. Now, the final version of a document contains metadata that reveals information about changes from prior drafts, the number of revisions, and the various authors of those revisions.
One largely untested area of public disclosure is the realm of text messages. Last week, when Erica tried to obtain copies of City Council member Tim Burgess’ text messages through a public records request, she was told that those records no longer existed because they’d been destroyed by AT&T, Burgess’ cell carrier.
One thing is clear: Electronic documents are subject to the public records act. Thus, an email or a text message that otherwise meets the definition of a public record has to be disclosed upon request—something City Attorney Pete Holmes acknowledged in a follow-up to Erica’s story.
Therefore, the fact that Burgess’ text messages were deleted raises some serious issues about retention and disclosure of these public records.
The PRA does not broadly require officials to retain public records to allow disclosure through a public-records request. It does, however, bar officials from deleting a record once someone has made a request. It may be true that Tim Burgess deleted the text messages for the period specified in Erica’s request before she made the request, in which case Burgess did not violate the PRA.
However, it might be interesting to make a PRA request for all text messages in the cell phones of all City Council members at the time the request is made. In theory, that request would produce all the text messages that exist at the time of the request.
(Whether a text message is retrievable from an official’s cell carrier is probably irrelevant to a public records request because that isn’t under the government’s control.)
But the PRA isn’t the only law that governs the retention of public records. As Erica mentioned in her article, there is a specific law, RCW 40.14, that requires local government officials to hang on to certain public records, as determined by the state Attorney General and the Secretary of State. Under the existing policy (most recently updated last month), unless specified otherwise, local governments must retain “[i]nternal and external communications to or from the agency’s elected official(s) and/or executive management, that are made or received in connection with the transaction of public business” for two years.
The policy does provide that “routine” information about the operation of an agency, and “transitory records”—“public records that only document information of temporary, short-term value”—must be retained only “until no longer needed for agency business”. So whether Burgess’ text messages contained either routine or transitory information that could be deleted remains an open question. And the broader question is whether the city is making efforts to train its elected officials and employees on how to make these distinctions to ensure that emails and text messages are properly retained.
