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Disclosure of Text Messages Under Freedom of Information Laws

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Overview Edit

Text messages are routinely used to conduct government business. As a result employers, litigants, newspapers, and public interest groups are increasingly seeking access to the contents of such communications in order to shed light on the workings of government. One of the arguments against disclosure of text messages emerging from public officials is that certain delivery platforms or technological devices should, by their very nature, be private because the official owns them, or keeps them in her pocket. Because text messaging represents a relatively new form of electronic communications, state and federal courts are considering requests for access to and disclosure of text messages pursuant to freedom of information laws.

Judicial decisions Edit

Courts have begun exploring ways to apply open government laws to text messages. In Texas, a state judge ordered the City of Dallas to turn over e-mails and text messages sent by city officials from personal accounts and personal hand-held devices to conduct city business, and held that the e-mails and messages were subject to disclosure under the Texas Public Information Act.[1]

Newspapers in Detroit, Michigan, filed a Freedom of Information Act (FOIA) lawsuit against the city seeking disclosure of text messages sent by Detroit elected officials on city-issued pagers that relate to the city's $8.4 million settlement of two whistle-blower lawsuits brought by former Detroit police officers.[2] The city has argued that disclosure of the text messages would violate the federal Stored Communications Act. A public records directive issued by the city states that all electronic communications sent on city equipment "is not considered to be personal or private."[3] Although the newspapers obtained the text messages through an anonymous source, they continue to press for the release of additional information under public records law.[4] A court ruled part of the information the newspapers wanted was public, the Free Press published text messages related to the cover-up and the Mayor and Chief of Staff were charged with eight felonies.[5] The newspapers are continuing to pursue additional information using the state FOIA.

Legislative activities Edit

New York legislators have proposed revising the state’s open records law to specifically add text messages to the list of records covered.[6] A new Freedom of Information Law became effective in New York on August 7, 2008, and includes provisions which reflect a recognition of advances in information technology, but does not include a provision on text messaging.[7]

References Edit

  1. Jennifer LaFleur, "Dallas: City Must Provide Messages From Officials' Personal Accounts," Dallas Morning News (Oct. 30, 2007) (full-text).
  2. Detroit Free Press, Inc. v. City of Detroit (No. 08-100214 CZ, Wayne Cty. Circuit Ct., MI) (full-text).
  3. On June 26, 2000, Mayor Kilpatrick signed a "Directive for the Use of the City of Detroit’s Electronic Communications System."
  4. A "public record" under the Michigan Freedom of Information Act is a writing that is: (1) prepared; (2) owned; (3) used; (4) in the possession of, or (5) retained by a public body in the performance of an official function. . . . MCL 15.232(e).
  5. For an excellent chronology of developments, see Reporters Committee for Freedom of the Press.[1]
  6. Ledyard King, “Battle Over Public Information Expands,” Federal Times, Mar. 24, 2008, at 14.
  7. N.Y. Pub. Off. Law §84 et seq. See Summary of the amendments to the New York Freedom of Information Law (full-text).

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