FAQ: Are Text Messages Records?

By Erica Wilson, Government Information Analyst

Photo by Susan Sermoneta

Before hitting ‘send’ on your next text message, you may want to think about the content of your message and whether you’d be willing to disclose it to the public.  Several recent cases in Texas have prompted this question: Are text messages sent by members of governmental bodies public information?

Some would argue that something as short and informal as a text should not be considered an official public record, but remember: a record is a record, despite what medium it is in.  Content is what is relevant.

During the last legislative session, State Representative Todd Hunter (R-Corpus Christi) introduced H.B. 2977, which would have made it illegal for any school board member, city council member, county commissioner, or any other elected official to transmit an electronic message during a government meeting. Several news stories had emerged about elected officials sending texts during open meetings and many argued that this violated the Open Meetings Act, which intends to make government more accessible to the public. By agreeing to items through texting during the meeting, members may have undermined the idea that open meetings exist for government transparency. Even though Rep. Hunter’s measure did not pass during the session, it may be introduced again in the next legislative session.

As well, the issue of text messages being subject to disclosure laws is gaining attention nationwide.  Already, some courts and lawyers are considering these messages as public documents, making them susceptible to laws like the federal Freedom of Information Act and the Texas Public Information Act. As yet, the Texas Public Information Act does not address text messages specifically, but in September of 2011, the Office of the Attorney General issued a decision on the issue.

The scenario for the opinion was as follows: A city had received a request for text messages and e-mails sent between the city’s commission members, the city secretary, and senior personnel. An attorney for the city argued that the requested information was exempt from the Texas Public Information Act, citing sections of the law that protect government officials from requests that would constitute an invasion of privacy.  However, the Office of the Attorney General disagreed and affirmed that text messages and e-mails that are created in connection with the transaction of official business are public information and the people of the state are entitled to complete information about the affairs of the government.

So the next time you are dashing off an e-mail or text on your smart phone, be conscientious about exactly what you are writing if it pertains to any governmental business.  That communication could be requested by a member of the public or a news organization, and you do not want the results to be something embarrassing, or worse, incriminating.