Off the Record: Texting

by Erica Rice

Tune in monthly for a curated collection of articles we found interesting on a broad range of topics; some which are directly related to records management and others which might share common themes.

No, we didn’t write these articles —hence the name of this series, “Off the Record”— but fortunately, we didn’t need to in order to share the knowledge with our subscribers.

This month we are focusing on texting!

You may have seen our recent blog post on Senate Bill 944, which basically states that any public business conducted on a personal device is indeed a government record. This includes text messages. Furthermore, government employees creating records via text on personal phones/devices become “temporary custodians” of those records; they are responsible for maintaining the records for their full retention periods, or transferring the records to government-controlled storage.

Let’s see what folks in the RIM community have been saying about text messages…

Texas Quietly Updates Records Laws to Include Personal Devices — Government Technology

A government employee multitasking by conducting government business on multiple devices.

I don’t know if I agree that S.B. 944 was passed “quietly” – our Records Management Assistance Unit has certainly been talking about it a lot! We’ve been fielding quite a few more phone calls about this topic from local and state governments, and we’ve incorporated the new law into our in-person training classes.

Nevertheless, this article provides a nice “open records” perspective on the issue of maintaining government records on personal devices. Transparency, accountability, and integrity are some of the core values of records management, whether you are managing records in the private or public sector. There is also some discussion about how to draw a hard line between personal information and public work – this is especially important to do when the way we communicate (via text, social media, WhatsApp, etc.) in today’s work culture is rapidly evolving.

Data Preservation: Don’t Treat Discovery Like It’s 1999“- IG Guru

Laying down the law on texts.

Highlighted here are two legal cases where text messages played a major role in discovery and the preservation of evidence. It’s important for records managers to keep up with legal cases involving records, as it is not always possible to answer all of our “what if” questions until the scenarios are tested in “real life” (e.g. what ARE the actual repercussions of auto-deleting all text messages?)

This article reiterates what records managers already know and what we already teach: knowledge of any active or pending litigation must lead to an immediate destruction hold on any relevant records – that means that relevant records cannot be destroyed (even if the retention period has been met) until litigation has ended and all holds have been lifted. As S.B. 944 instructs, this also includes relevant records on personal devices. Spoiler alert: it turns out the parties in both the lawsuits covered in the article did not get the memo!

D.C. Officials Using WhatsApp For City Business May Skirt Open Records Laws” – WAMU 88.5

A government employee using an encrypted texting service.

This article discusses the text messaging practices of city officials in Washington, D.C., but the same general transparency principles apply whether you are working at the federal, state, or local government level in any state.

The important point here is that a record is a record regardless of the format it is created or received in. WhatsApp is an app that touts itself as more of a private, secretive communication tool; however, public records must still be retained and made available for the appropriate amount of time, even if they are created and stored in an encrypted environment. As Alex Howard states in the article, “The backbone of open government and of good government is public records. And when officials move these activities into these spaces that weren’t designed for them, record-keeping might be inherently disabled.” Records managers need to carefully consider their agencies’ electronic records policies, especially the list of approved software and phone apps for the transaction of public business.

That’s it for this month…let us know in the comments below what topics you are interested in learning more about!

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