FAQ: Are text messages records? (redux)

It’s been almost 6 years since we addressed this question originally. In that time, the popularity of text messaging (“texting”) has skyrocketed while awareness that text messages (“texts”) are potentially government records has increased very little. Here we go again!

The definition of a government record in Texas is media neutral. A record is defined by its content, not what it’s recorded on. The fact that a text is (usually) a short electronic communication, even one sent and/or received on a device you own, does not prevent it from being a government record.

The Texas Legislature defines a government record as any recorded information created or received by a local government, state agency, elected official or government employee that documents the transaction of government business. Government records can be “written, photographic, machine-readable” or recorded on other physical forms.  Some examples include papers, letters, books, maps, photographs, sound or video recordings, microfilm, magnetic tapes, or electronic media if the content transacts government business.

Believe it or not, you can conduct government business via text message. Inviting your coworkers to happy hour, however, is not a government record. Such an invitation does not transact government business because happy hour is not a government function.

Text message invitation to happy hour.

But a police officer’s warning to a driver to put down their cell phone while driving is a government record. It’s PS4150-09.

Police officer texts citizen who is driving while texting.

Issuing warnings to drivers is a function of law enforcement. A patrol officer updating their patrol sergeant by text is a government record, too. Just because government transacts business by SMS instead of email or paper doesn’t change the communication’s status as a record.

That doesn’t mean people haven’t asserted texts aren’t records.The Attorney General of Texas has addressed if texts are records at least four times since 2009.

The Open Records Division ruled against the government in each instance, finding the contents of some texts exchanged by elected officials and government employees are government records because they transact government business. Texts that don’t relate to government business are explicitly excluded (see Lubbock, El Paso). On at least nine occasions, the Attorney General has simply assumed texts connected to government business are government records (Oct. 2012; Feb. 2015; July 2015; Feb. 2016; July 2016; Oct. 2016; Feb. 2017; May 2017; and June 2017).

And Texas isn’t the only state with a government texting problem (Montana and Oregon).

Keep in mind texting on your own cell phone doesn’t change the outcome. The Attorney General repeatedly rules texts are records even if exchanged by an official/employee on a cell phone not owned and paid for by the government (see Lubbock, San Juan, Dallas Police & Fire). By the way, the reason the Attorney General gives (“the mere fact that the city does not possess the information at issue does not” make it not a record) potentially has consequences for third-party cloud storage.

We want to hear from you! Does your office have a texting policy? How do you capture and retain texts? What’s your procedure for locating and producing requested texts? Let us know in the comments down below.

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