In December, the Washington Post revealed that Maryland Gov. Larry Hogan was using an application to communicate with his political aides and advisers that automatically deletes messages after 24 hours, despite those records potentially being subject to requests under Maryland’s open records law.
According to the Post, Hogan uses a messaging app called Wickr to ensure the messages in a private chat with state employees self-destruct after 24 hours. While Hogan declined to comment on his use of the app, his spokesperson described the messages as “political and communications conversations with advisers, many of whom do not work for the state,” discussing “fluid political and media, news of the day conversations.”
Hogan claims that he is not conducting public business in his Wickr communications, and therefore the messages are not subject to Maryland’s open records law. Under the Maryland Public Information Act, any citizen is able to submit a request to review and obtain copies of public records. The law defines a “public record” as “the original or any copy of any documentary material that is made by the unit or an instrumentality of the State or of a political subdivision or received by the unit or instrumentality in connection with the transaction of public business; and is in any form, including … a computerized record or correspondence.”
As Maryland’s own guide provides, the law covers “virtually all public agencies or officials,” and is broader than the federal Freedom of Information Act, covering all “public” records, not just records of “agencies.”
The revelations led the Post’s editorial board to write that an earlier incident involving disclosures under the law may have prompted the adoption of the app. In 2016, the Associated Press obtained access to a trove of the governor’s internal communications with staffers, ranging from complaints about his appearance in photographs to Baltimore Sun editorials criticizing one of Hogan’s speeches and the state’s response to a snowstorm.
It is concerning that a state governor, especially one who has advanced pro-transparency measures in the past, would assume certain communications records are outside of his state’s public records law and independently ensure their deletion.
State and federal open records laws facilitate the public disclosure of important government information. Recently, FOIA requests enabled major breakthroughs in reporting, from Azmat Khan’s revelatory exposé on the government’s drone usage in the Middle East (aided by Reporters Committee attorneys) to BuzzFeed’s relentless pursuit of records documenting decisions under former President Donald Trump’s administration.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.