Published in FAHROgram January/February 2018 edition
I know, I know. You’re tired of reading about text messages being public records and having me say that the best way to deal with this issue is simply to disable text messaging altogether on your agency issued cell phones and to have a policy against business texting on personal cell phones. Well, it’s a new year! And guess what … my advice is still the same! I do, however, want to bring something to your attention that could provide you with a viable alternative to the “don’t text” solution.
Late last year, William Russell, CEO of the Sarasota Housing Authority, brought to my attention a matter against the City of Venice, Florida (“City”) involving a public records request for text messages. It seems that a concrete recycling company was in a dispute with the City’s code enforcement department, and a paralegal for a Sarasota law firm famous for suing for public records violations made a public records request for text messages between code enforcement employees. As a result of a 2009 settlement in an open records lawsuit, because the City did not have the capability of capturing texts on City cell phones, the City forbade employees from texting on City-issued cell phones. This latest public records request uncovered a flaw in the way the City handled text messages. The City’s cell phone bills showed texting activity starting in January 2016. It showed texting between code enforcement employees. As a result of this information, the paralegal expanded his public records request to include all texting activity by City employees, public officials and appointed board members from January 2016 to the date of the request. In order to comply with the expanded request, the City had to hire a firm specializing in forensic data retrieval to examine the cell phones-both City issued and personal-of all City employees. The paralegal indicated this was a huge transparency issue since the presumption previously had been “don’t bother asking the City for text messages because city employees don’t text.”
The City indicated that it has always asked its cell provider, Verizon, to block the ability of City-issued cell phones to send SMS texts, but the ability to receive texts could not be blocked. All text messages received, including spam texts, would show up on a Verizon bill. The City handled the blocking of Apple’s proprietary iMessage texting through a Cisco networking product called Meraki.
In January of last year, the City started a refresh cycle with Verizon for new cell phones. Most City employees were issued iPhones purchased at a discount on a government contract. Currently the City can buy iPhone 6s for $0.99 each. That’s not a typo, so some of you may want to look at piggybacking on that contract! When the refresh occurred, Verizon apparently forgot to disable the texting capabilities on the new cell phones. After this was discovered, the City told Verizon to turn off that capability. Ironically, during the January refresh, the City was installing an app from a Portland, Oregon-based company called Smarsh that allows the City to archive text messages, and it could lift the prohibition against employee texting.
So, what would I suggest you take from this update? First, the potential that someone will make a public records request for text messages from your agency remains a real possibility. Second, that request could necessitate an examination of both business and personal cell phones for applicable text messages. Third, I still recommend disabling the ability to send text messages, realizing that the ability to disable the receiving of text messages may not be available, and creating a policy against any business texting. Fourth, if you still want to be able to use text messaging in your agency, now there is a low-cost method to archive your messages without the aid of the cell provider through an app known as Smarsh. I am not advocating on behalf of any products mentioned here, but I have been told that Smarsh does seem to work. Additionally, Corey Mathews has mentioned a free app called “If This Then That” or “IFTIT” that potentially would allow for the same type of archiving. It requires establishing applets that you or your IT person or consultant can create.
© 2018 Saxon Gilmore. Saxon Gilmore publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Saxon Gilmore. This publication may not be quoted or referred to in any other publication or proceeding without the prior written consent of the firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our Contact form via the link below. This site may contain hypertext links to information created and maintained by other entities. Saxon Gilmore does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites.