We have received a flurry of calls and emails after the 2019 legislative session from government entities concerned with the provisions of Senate Bill 944, which is an amendment to the Public Information Act (PIA).  In this article, we’ll highlight the parts of the bill concerning records management, particularly when it comes to text messaging.

Background

S.B. 944 was born from calls for the legislature and state to do more to ensure that an officer or employee of a governmental agency who creates or receives records on a privately-owned device or account provides that information to the government’s public information officer or officer’s agent for the purposes of protecting that information and ensuring transparency. 

The good news is S.B. 944 now explicitly states what was previously best practice and allows governments to obtain records stored on an official’s or employee’s private device.  The Office of the Attorney General and courts have ruled for years that records held on private devices or in private accounts of officers or employees are still records and are subject to records management and public information laws.  Section 202.004 of Texas Local Government Code has prohibited the alienation of records since 1989 and Section 202.005 gives the governing body of a local government the right and proper legal channels to recover any records that reside in the possession of an individual.

Definitions and Obligations

S.B. 944 adds a definition to Section 552.003 of the PIA: “temporary custodian,” which refers to a past or present government official who, in the transaction of official business, creates or receives public information that they have not provided to the officer for public information of the governmental body.

Sec. 552.004 of the PIA was amended to say that government officials who use personal devices to conduct the transaction of public business are responsible for turning over those messages to an official government account and/or preserving them on the personal device for the duration of the retention period. Furthermore, this amendment applies existing records management laws (Gov. Code Chapter 441 and Title 6 of Local Gov. Code) governing the preservation, destruction, or disposition to the records held by a temporary custodian. So no matter where a record resides, it is subject to the administrative rules laid out in retention schedules.

S.B. 944 also amends Sec. 552.233 to establish that a current or former officer or employee does not have, by virtue of the officer’s or employee’s position or former position, a personal or property right to records created or received while acting in an official capacity.  Just as this blog article is not my property just because I wrote it while working for TSLAC, any government records created or received by a temporary custodian belong to the government employing them.

Responsibilities and Repercussions

Temporary custodians are responsible for turning over public information held on a privately-owned device to the governmental body should they request it, like if the information is responsive to a public information request. 

The PIA now specifies that if an officer or employee possesses records on a personal device that have not been provided to the government’s control, they must surrender or return that information to the governmental body not later than the 10^th day after the date that the government’s public information officer or officer’s agent requests the custodian to surrender or return that information.  The bill further specifies that a temporary custodian’s failure to comply with a request is grounds for disciplinary action by the governmental body that employs the temporary custodian or any other applicable penalties provided by the law.

What does this mean for you?

So if you are an official or employee who uses a private device or account to conduct the transaction of public business, how do you preserve this information? Here are some options:

• Immediately forward any records on a personal device to a government device or account.
• Limit use of a personal device or account for only transitory information (as described in the retention schedules.)
• Use methods of capture to preserve the information for the full retention period.

See these other blog articles on the topic of text messages:

FAQ: So text messages can be records – how do we capture and retain them?

FAQ: Are text messages records? (redux)

For questions about the Public Information Act, reach out to the Open Records Division of the Office of the Attorney General at 1-877-OPEN-TEX.