The Complicated Relationship Between Text Messages and Public Record Laws

Texting is ubiquitous. By the mid-2000s, it had practically become the de facto form of communication for the Digital Age, largely facilitated by the mobile boom and the subsequent smartphone wars.

According to GSMA Intelligence, more than 5 billion people worldwide have a cell phone subscription. To put that into perspective, nearly 65 percent of Earth’s population owns a device that supports text messaging.

With that kind of penetration, it should come as no surprise that our relationship with texting is constantly evolving. From its origins in casual conversations, it has become an increasingly important communication tool for business and politics.

But issues can arise when government officials conduct business using text messaging. For one, public officials can easily delete important messages that interest the public. As Philadelphia Mayor Jim Kenney recently learned, deleting logs of government correspondence can raise concerns about state open record laws.

Philadelphia Mayor Deletes Years of Official Correspondence

July 2018 was a hectic month for Kenney. While serving his first term as mayor of Philadelphia, he navigated controversy after controversy. Meanwhile, he was making arrangements to go on his first international trade mission since taking office.

Kenney conducted a lot of his business over a mobile phone. When he assumed the role of mayor, he was given the option to use a city-issued mobile phone, but he declined. Instead of carrying two devices, Kenney decided to use his personal smartphone to conduct official business.

According to Kenney’s spokesperson, Deana Gamble, Kenney regularly deletes items on his phone to clear space. The problem is that the texts on Kenney’s phone are not just grocery reminders from his spouse. The texts that he deleted — which allegedly dated back three years — could’ve shown his community how he addressed his mayoral duties. Ultimately, those texts were public record. Or they should’ve been.

Text Messaging and Public Record

In recent years, we’ve seen a lot of legislation introduced in response to the increasing rise of business-related texting among public officials. At the federal level, the Freedom of Information Act (FOIA) governs federal public record laws, and most states have enacted their own legislation to reinforce or expand on the FOIA. For example, Pennsylvania has the Right-to-Know Law, which has guaranteed people the right to access public records from government agencies since the beginning of 2009.

In 2005, the Washington Supreme Court ruled that official correspondence on personal computers — in other words, email — applied to FOIA. Then, ten years later, correspondence on mobile devices, including SMS and social media messaging, eventually fell under FOIA jurisdiction.

As the Right-to-Know Law was just making its way into the hands of state government officials, the general public was starting to notice the blind spots in legislation related to public records.
When a public official uses a government-issued device, there’s little question that all communication through the phone is public record. But what if the official uses a personal phone for government work? Should some or all data on the phone be public record?

In essence, an official’s personal device is subject to public record laws only insofar as the device is used in the course of official duty. In other words, not everything on the device is subject to public record laws, only correspondence pertaining to the official’s role and related duties.

This scenario can be complicated. You’ve got a situation where information that should be public record is stored on a device that’s privately owned. That means it’s up to the public official to be diligent about cataloging all the necessary data from his or her personal device. The rest of us have to trust that no data is missing or omitted.

The situation with Kenney’s deleted texts renewed criticism of current public record laws and protocols. Specifically, some are now calling for increased regulation of our public officials’ mobile communications and how they are documented. After all, the onus is on officials to submit correspondence for public record.

But does it have to be?

How Uplink Can Help

What if public officials didn’t have to worry about cataloging official correspondence? What if records were kept externally and stored automatically, allowing people to delete anything from their personal devices without losing records of their data?

Although it was designed with sales teams in mind, Uplink has applications for many unique situations. That includes using the tool to catalog important mobile correspondence.

Here’s how it works: Uplink is built on proprietary software that leverages the technology already at your fingertips. By assigning both the sender and receiver of mobile messages their own Uplink Numbers, text messages are filtered — and, more importantly, documented — in the Uplink web app. It all happens automatically from behind the scenes, meaning you get to send and receive text messages through Uplink in virtually the same way that you exchange text messages with family members and friends.

With Uplink, there are no complicated software installs and no third-party messaging platforms involved. All you need is a mobile device and its native messaging app, an active plan with your wireless carrier, and an Uplink account to start cataloging all your correspondence.

Even when messages are deleted from the mobile device, they remain accessible in Uplink. Essentially, this means Uplink alleviates the need to manually catalog important text messages. If you’re someone who holds public office, Uplink can be a great tool for making sure you’re complying with all applicable public record laws.

Interest in how elected and appointed officials are fulfilling their duties will only increase in the years ahead. For this reason, public servants should know that a tool like Uplink can help facilitate transparency and build trust among the public.

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