The Next Step toward Open Government – Preserving Text Messages

by Ruder Ware
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The Wisconsin Public Records Board is looking into the next step in preserving open government, which is how to save text messages and social media messages authored by local government officials.  The Public Records Board recently issued a press release stating that it was looking to develop new guidelines that would be used by government officials in dealing with text messages and social media messages.  The Chair of the Public Records Board stated that local government officials should not be using text messages for communicating about public business if the local government unit does not have a platform to manage and store the text messages or store social media statements used by the local government officials.
 

As the future use of technology expands, local government officials will have to address how they are going to use these new forms of media and what steps need to be taken to preserve the integrity of local government by capturing and storing theses different types of communication.  Originally, there was a suggestion that text messages and social meeting commentary would be considered “transitory records” and would not be subject to the requirement for maintenance of a public record under the Wisconsin Public Records Law.  This theory was not well received and has not been implemented so local government officials need to be very concerned about how they communicate through text messaging and social media comments and take efforts to preserve the integrity of those communications.  The local government unit needs to consider purchasing appropriate services that would capture these communications and preserve them as a public record. 

On a different front, the Attorney General for the state of Missouri has recently launched an investigation into the actions taken by the Governor and his staff of allegedly destroying public records by using a particular app that erases text messages.  It is alleged that the Governor and senior staff have been using an app called “Confide” which destroys text messages after they have been read and prevents anyone from saving or forwarding a text message or taking a snapshot of a text message to preserve it.  The investigation is underway as an effort to determine whether or not the Governor and his staff are violating the state’s Public Records Law.  While there are no reports of this type of behavior in Wisconsin, it is another example of how the use of technology and the various ways to communicate in today’s world can become a problem for local government officials.  More to come on this topic.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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