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7. How are text messages and instant messages treated?

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  • Alaska

    The Public Records Act defines the term “public records” to mean “books, papers, files, accounts, writings, including drafts and memorializations of conversations, and other items, regardless of format or physical characteristics.” AS 40.25.220(3).  There are no reported cases at this time dealing with text messages and/or instant messages. However, apart from any practical questions about capturing and preserving these records, there is no reason to believe they would be treated differently than e-mails, see [State Law on Electronic Records] section III.D in this Guide, which would mean that if they relate to the conduct of public business they are presumed to be public records, disclosable as such subject to otherwise applicable exceptions regardless of whether the phones or other devices used to generate or receive them are publicly or privately owned.

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  • Arizona

    “In the case of a public employee’s personal cellphone records, a requestor can raise a ‘substantial question’ by showing the employee used his or her personal cell phone for a public purpose. . . .  If the threshold showing is met, the burden then shifts to the party claiming the record is private to so establish.”  Lunney, at 12 (internal quotation omitted).

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  • Arkansas

    Although there have been no decisions by Arkansas courts nor any Attorney General opinions concerning text messages, the FOIA defines the term “public record” to include “electronic or computer-based information.” Ark. Code Ann. § 25-19-103(5)(A). Therefore, text messages presumably constitute a record, and would probably be subject to the same analysis as e-mails, another type of “electronically or computer-based” type of information. E-mails concerning public matters on a government e-mail account are public records. Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007). Therefore, text messages concerning public matters on government hardware are probably subject to disclosure.

    If a text message concerns a private matter or is personal in nature, it is not subject to disclosure under the FOIA.

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  • California

    The CPRA’s definition of “writings” and “public records” arguably includes text messages and instant messages of public officials and public employees where those messages relate to the public’s business. Under the CPRA, "'Writing' means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds or symbols, or combination thereof, and any record thereby created, regardless of the manner in which the record has been stored." Cal. Gov't Code § 6252(f).  “‘Public records’ includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” Cal. Gov’t Code § 6252(e).

    While no California published case has specifically addressed access to text messages or instant messages, the California Supreme Court has held that emails sent to or from public employees though private email accounts relating in some substantive way to the public’s business are “public records” within the meaning of the CPRA. See City of San Jose v. Superior Court, 2 Cal. 5th 608, 616, 623, 214 Cal. Rprt. 3d 274, 389 P.3d 848 (2017). This holding would seem determinative of the public’s right of access to text messages where related to the public’s business and “prepared, owned, used or retained” by the public agency or public employee.

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  • Colorado

    Text messages and instant messages are treated identically to e-mail. See Denver Publ'g Co. v. Bd. of Cty. Comm'rs of Arapahoe Cty., 121 P.3d at 192 & n.1. Thus, text messages and instant messages are likely to constitute a public record under the same analysis as any other electronic mail. And, under that same analysis, text messages that discuss governmental business constitute a public record, regardless of whether they reside on private or public hardware; text messages that do not discuss any governmental business do not constitute a public record, regardless of whether they reside on private or public hardware.

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  • Connecticut

    These should be treated the same as e-mail.

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  • Delaware

    The Act does not specifically address text messages, but "public records" includes all information "regardless of the physical form or characteristic…." 29 Del. C. § 10002(g), and such messages have been requested under the Act. Del. Op. Att'y Gen., No. 09-ib04 (June 4, 2009).

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  • District of Columbia

    Neither the statute nor the courts have addressed this specifically, but text messages and instant messages would likely be considered "information stored in an electronic format" under the D.C. Act.  D.C. Code Ann. § 2-502(18). The legal framework for public matters on private e-mail accounts, would likely determine whether the messages should be disclosed in a particular case.  Public matters on a private e-mail account can be considered public records under the D.C. Act if they were "prepared, owned, used, in the possession of, or retained by a public body."  Vining v. District of Columbia, 2014 D.C. Super. LEXIS 14, at *6 (July 9, 2014) (quoting D.C. Code Ann. §2-502(18)).  Accordingly, text messages that discuss public matters could be disclosed under the D.C. Act if they are prepared, owned, used, in the possession of, or retained by a public body.

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  • Georgia

    Text messages and instant messages are subject to the Act.  The Act requires that “requests to inspect or copy electronic messages, whether in the form of e-mail, text message, or other format, should contain information about the messages that is reasonably calculated to allow the recipient of the request to locate the messages sought, including, if known, the name, title, or office of the specific person or persons whose electronic messages are sought and, to the extent possible, the specific data bases to be searched for such messages.”  O.C.G.A. § 50-18-71(g).

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  • Hawaii

    There is no statutory or case law addressing this issue.

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  • Idaho

    The application of the Act with respect to text messages and instant messages has not been addressed by the courts or the Idaho Legislature. According to the Idaho Attorney General, text messages “are considered public records and are subject to the same laws as any other public record.” Idaho Public Records Law Manual, July 2017. (See https://ag.idaho.gov/office-resources/public-records/.)

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  • Illinois

    Text messages and instant messages are public records as long as they have been prepared by or for, or have been or are being used by, received by, or are in the possession of, or under the control of any public body.  5 ILCS 140/2(c).  Although an alderman is not a “public body” under the Act (and, thus, is not subject to the Act’s disclosure requirements) if the alderman’s text or instant messages have been received by, used by or are in the possession of, or under the control of any public body, they would be subject to disclosure. City of Champaign v. Madigan, 2013 IL App (4th) 120662, 992 N.E.2d 629. See also Quinn v. Stone, 211 Ill.App.3d 809, 570 N.E.2d 676, 156 Ill.Dec. 200 (1st Dist. 1991).

    Any public matter contained in government hardware is subject to inspection and copying under the FOIA. See 5 ILCS 140/2; 5 ILCS 140/1; see also 5 ILCS 140/7(1)(c) (“The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.”)

    The FOIA applies to any public record within the control of a public body; a message on government-owned hardware constitutes a presumptively-open public record.  5 ILCS 140/2; 5 ILCS 140/1.2.  That is, a public body can withhold “private matter” contained within this public record only if it can show—by clear and convincing evidence—that the private matter qualifies for any specific exemption under the FOIA.  See 5 ILCS 140/1.2; 5 ILCS 140/7.  For example, the public body may attempt to invoke 5 ILCS 140/7(1)(c), arguing that releasing the private matter would amount to an invasion of privacy.  But to do so successfully the public body must provide facts that demonstrate that disclosing the records would be “highly personal or objectionable to a reasonable person and [that] the subject's right to privacy outweighs any legitimate public interest in obtaining the information.”  5 ILCS 140/7(1)(c); see 5 ILCS 140/1.2.  The FOIA makes clear that “[t]he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.”  5 ILCS 140/7(1)(c).

    A public matter message on private hardware would be subject to disclosure only if the message (or the hardware containing the message) has been prepared by or for, or has been or is being used by, received by, in the possession of, or under the control of any public body.  5 ILCS 140/2(c).

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  • Indiana

    The statute does not specifically address text messages or instant messages. However, Indiana Public Access Counselor Joseph B. Hoage did not dispute that text messages are a matter of public record. Opinion of the Public Access Counselor 12-FC-83 (2012). Further, there is no reason to treat these messages any differently from any other record under the statute. See Ind. Admin. R. 9(D)(2) (rules for public access to court records apply to all court records, no matter how the information was created, collected, or submitted to the court, and independent of the technology or format of the information).

    A 2016 Public Access Counselor letter addressed whether there is a distinction between text messages sent from public employees’ city-owned and personal phones. Informal Inquiry 16-INF-30 (2016). Indiana Public Access Counselor, Luke H. Britt, advised the City of South Bend’s Legal Department that the particular messages’ content is the “critical element.” He further advised that public employees should retain “public business messages” irrespective of whether the device holding the messages is city-owned or personal.

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  • Iowa

    There is no specific statutory provision covering text messages or instant messages, and there are no reported cases.

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  • Kansas

    The 2016 amendments apply KORA to any electronic communication made “pursuant to the officer's or employee's official duties and which is related to the functions, activities, programs or operations of any public agency,” not just email.  “The electronic nature of the record does not change the rules under the KORA.” Kan. Att’y Gen. Op. 2002-1.

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  • Kentucky

    Text messages and instant messages that are “prepared, owned, used, in the possession of or retained by a public agency,” are subject to the Kentucky Open Records Act because it defines “public record” to include all documentation “regardless of physical form or characteristics.” Ky. Rev. Stat. 61.870(2); see 15-ORD-129 (Text message are included within the scope of the Act). In 15-ORD-226, the Attorney General held "that a document created using public funds stored or otherwise hidden on a private cell phone retains its status as a public record and will still be subject to the Open Records Act."  The Attorney General "admonishe[d] public employees against using private cell phones to carry out public work in an attempt to shield such communications from the purview of the Open Records Act." Id. For practical purposes, public agencies may not retain such records unless they are required to do so under their document retention schedules. Document retention schedules, which are determined by the Kentucky Department of Libraries and Archives, vary by agency and can be found at http://kdla.ky.gov/records/recretentionschedules/Pages/stateschedules.aspx.

    Kentucky’s General Assembly created a new exemption to the Open Records Act’s mandate of disclosure in 2018, which applies to “communications of a purely personal nature unrelated to any governmental function.” Ky. Rev. Stat. 61.878(1)(p). The exemption has not yet been the subject of Attorney General decisions or judicial opinions.

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  • Louisiana

    No specific provisions, but under the Act, governmental text messages or instant messages should be treated as a public record and should be produced to a requester absent an applicable exemption.  The statutory definition of “public record” includes all “records . . . regardless of physical form or characteristics,”  La. Rev. Stat. Ann. § 44:1, without regard to where the records are located.

    The Act defines “public records,” as records having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state.”  Thus, private texts on government computers or servers may not be held to be “public records,” while   public matters on private devices should be subject to the Public Records Act.

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  • Maine

    A text or instant message “received or prepared for use in connection with the transaction of public or governmental business or contains information relating to the transaction of public or governmental business” is a public record.  1 M.R.S.A. § 402(3). Purely private or personal text or instant messages may not be subject to disclosure. See Doyle v. Town of Falmouth, 2014 ME 151, ¶ 14, 106 A.3d 1145 (“records of personal telephone calls . . . that were unrelated to the transaction of public or government business do not fall within the definition” of public records).

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  • Maryland

    There is no statutory or case law addressing this issue.  

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  • Michigan

    Text messages and instant messages are likely records subject to FOIA.  Although there is no published case law on the subject, the Wayne County Circuit Court issued an order in a FOIA case requiring a third-party service provider to produce the text messages that eventually caused the resignation and conviction of Detroit Mayor Kwame Kilpatrick.  Detroit Free Press, Inc. v. City of Detroit, No. 08-100214-CZ (June 26, 2008). But cf. Howell Educ. Ass'n MEA/NEA v. Howell Bd. of Educ., 287 Mich. App. 228, 245, 789 N.W.2d 495, 505 (2010) (noting that, in denying leave to appeal in Detroit Free Press, Inc. v. City of Detroit, “the Supreme Court did not rule that the text messages themselves were public records”).

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  • Montana

    Text messages are subject to disclosure if they relate to the transaction of official business. Mont. Code Ann. § 2-6-1002(13)(a). Any public or private matter subject to retrieval is open to public inspection if it relates to the transaction of official business.

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  • Nebraska

    Text messages and instant messaging are not explicitly addressed in the public records statutes. The Attorney General has opined that text messages sent or received by the Mayor of Omaha are public records, to the extent they relate to the official business of the City of Omaha. Attorney General Disposition Letter, L. Donley to M. Cox, 4-14-15.

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  • Nevada

    Text messages and instant messages may be considered to be public records under the NPRA. NRS 239.010. Private messages will retain their character as private if they relate only to an individual’s personal affairs and do not affect the conduct of agency business. There are pending cases at the Nevada Supreme Court addressing this question.

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  • New Hampshire

    The Statute covers “government records” which, in turn, includes “information,” defined to include “data of any kind and in whatever physical form kept or maintained, including, but not limited to, written, aural, visual, electronic, or other physical form.”  RSA 91-A:1-a,III-IV. As with email (see section above), the content of the message would govern whether it must be disclosed.

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  • New Jersey

    There are no reported cases in New Jersey that expressly hold that text messages are accessible under OPRA.  However, OPRA defines a “government record” broadly as any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof.

    Thus, it appears that text messages would fall within this definition and would be considered a government record, subject to access, unless they fall within a particular exemption.

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  • New Mexico

    The Inspection of Public Records Act provides a very broad definition of public records that may encompass text/instant messages.  See NMSA 1978 § 14-2-6(G) (2013).  “[P]ublic records” means all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business …”  Text and instant messages on public databases or public equipment likely constitute a record under this broad definition.  In addition, the Inspection of Public Records Act states that information contained in information systems or computer databases shall be a public record and a public message that relates to public business constitutes a public record.  See NMSA 1978 § 14-2-6(G) (2013).

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  • North Carolina

    Because the definition of public record is broad, including “electronic data-processing records” and expressly disavowing any significance of “physical form or characteristics,” text or instant messages are no different from other records. if they meet the definition of a public record, they will be treated as public records. if they are not “of and concerning” public business or they concern public business that otherwise is exempt, they would not be subject to disclosure. In a highly publicized scandal, the PIO of the N.C. State highway Patrol conducted an extra-work relationship with his secretary via text messages. The highway Patrol released all the texts he sent to his secretary and released the work-related text messages the secretary sent to the PIO, but the court declined to order the production of non-work text messages sent by the secretary to the PIO. WNCN et al. v. Department of Crime Control et al., Wake County Superior Court Case No. 10 CVS 11621 (2010).

    The location of the message is irrelevant; the content of the message controls. If they otherwise meet the definition of public records, texts and instant messages should be public records.

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  • North Dakota

    Text messages and instant messages are treated as open records. A “record” under North Dakota law means recorded information of any kind, regardless of the physical form or characteristic by which the information is stored, recorded, or reproduced, which is in the possession or custody of a public entity or its agent and which has been received or prepared for use in connection with public business or contains information relating to public business. N.D.C.C. § 44-04-17.1(16) (emphasis added).

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  • Ohio

    Although the Public Records Act does not address text messages explicitly, there is no principled ground for treating text messages differently from emails.

    To be a "public record," the recorded information must first be a "record" under R.C. 149.011(G). That provision defines a "record" as "including an electronic record" as defined in another statute, Ohio Rev. Code § 1306.01.

    Ohio Rev. Code § 1306.01 defines "electronic record" as "a record created, generated, sent, communicated, received, or stored by electronic means."

    The Ohio Supreme Court declined to decide whether a state legislator's work-related text messages are public record, as it found that the legislator's text messages id not pertain to any government duties, and so were not public record. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 894 N.E.2d 686, 2008-Ohio-4788.

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  • Oklahoma

    If the item is connected with the transaction of official business, the expenditure of public funds, or the administration of public property, a text message created by or received by either a State public body or a public body of a political subdivision constitutes a record subject to the Act. 2001 OK AG 46; 2001 OK AG 12.

    While not specifically ruling on the issue, the Oklahoma Attorney General has footnoted in one opinion that an e-mail between State or local government employees making lunch plans (if such use is permitted by the agency) generally is not in connection with public business, spending public money or administering public property, and therefore generally would not be a record. The Attorney General went on to say that whether a particular e-mail message fits this definition is a question of fact. 2001 OK AG 46.

    The Oklahoma Attorney General has opined that who owns an electronic communications device has no bearing on whether an electronic communication created or received on that device is a record. Thus, a communication that meets the definition of a record under the ORA is subject to disclosure regardless of whether it is created or received on a publicly or privately owned personal electronic communication device, unless some provision of law allows it to be kept confidential.  Further, the location of the electronic communications equipment does not matter, whether it is used in a governmental office, in a public official's or employee's home, or somewhere in transit between them.  2009 OK AG 12.

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  • Oregon

    There is no statutory or case law specifically addressing this issue. Because a text message or instant message appears to meet the definition of “writing” in ORS 192.311 (formerly ORS 192.410), if such a message relates to the public’s business, it would be treated the same as any other public record and would be subject to the same disclosure provisions and exemption claims.

    An issue that is likely to arise in this respect is archiving and retrieval of such messages.

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  • Rhode Island

    There is no statutory or case law addressing this issue.

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  • South Carolina

    If a text or instant message is “prepared, owned, used, in the possession of, or retained by a public body” it is by definition a public record. S.C. Code Ann. § 30-4-20(c).
    Matters unrelated to the activities of a public body are unlikely to be considered public records when on private hardware.

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  • South Dakota

    Text and instant messages are not specifically addressed, but will likely be treated as emails are treated.

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  • Tennessee

    Text messages and/or instant messages will likely be treated the same as email messages for purposes of public records.

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  • Texas

    In the letter ruling the Attorney General reasoned that Section 552.021 provides for public access to “public information.” See id. Section 552.002 defines public information as “information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body and the governmental body owns the information or has a right of access to it.” § 552.002(a). Thus, information that is collected, assembled, or maintained by a third party may be subject to disclosure under chapter 552 if a governmental body owns or has a right of access to the information. See Tex. Att’y Gen. ORD-462 (1987); see also Tex. Att’y Gen. ORD-499 (1988) (stating that generally records held by a private attorney related to legal services performed by the attorney at the request of a municipality are subject to the Open Records Act and disclosure depends on whether the records fall within any of the Act’s specific exceptions). Information is generally “public information” within the Act when it relates to the official business of a governmental body or is used by a public official or employee in the performance of official duties even though it may be in the possession of one person. See Tex. Att’y Gen. ORD-635 (1995). Although not an exhaustive list, the Attorney General stated that the following factors were relevant in determining whether documents are essentially personal in nature or whether they contain information that is collected, assembled, or maintained by or for a governmental body: who prepared the document; the nature of its contents; its purpose or use; who possessed it; who had access to it; whether the employer required its preparation; and whether its existence was necessary to or in furtherance of the employer’s business. Tex. Att’y Gen. Op. No. JC-3828 (2001) (citing In re Grand Jury Proceedings, 55 F.3d 1012, 1014 (5th Cir. 1995)).

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  • Utah

    GRAMA defines a “Record” to include “electronic data,” “documents,” and “other documentary material regardless of physical form or characteristics.” Utah Code § 63G-2-103(22)(a). Given this definition, text messages or instant messages regarding a public matter on government hardware are presumably public unless otherwise specifically exempted. Utah Code § 63G-2-103(22)(a). However, a “Record” does not include “personal communication[s] prepared or received by an employee or officer of a governmental entity: in a capacity other than the employee’s or officer’s governmental capacity; or that is unrelated to the conduct of the public’s business.” Utah Code § 63G-2-103(22)(b)(i)(A),(B). The meaning of “capacity other than the employee’s or officer’s governmental capacity,” and whether it extends to text messages or instant messages regarding a private matter on government hardware or a public matter on private hardware, is not addressed.

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  • Vermont

    A public record includes “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business.”  1 V.S.A. § 317(b) (emphasis added).  Thus, text messages would fall under the statute’s definition of a “public record.”  Last year the Vermont Supreme Court clarified that even text messages “located in private accounts of state employees or officials” are public records if they were “produced or acquired in the course of agency business.”  Toensing v. AG of Vt., 2017 VT 99, ¶ 12, 178 A.3d 1000 (Vt. 2017).

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  • Virginia

    Text messages and instant messages fall within the definition of “public record” and are subject to disclosure. Va. Code Ann. § 2.2-3701.  The analysis is analogous to email messages.

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  • Washington

    The definition of “public record” is broad enough to encompass such messages. See Nissen v. Pierce County, 183 Wn.2d 863, 357 P.3d 45 (2015).

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  • West Virginia

    There have been no court decisions indicating whether text messages and/or instant messages constitute a “public record” under West Virginia FOIA. However, depending on the specific circumstances, the holding of Associated Press v. Canterbury is instructive insofar as the Court in that case recognized that e-mail communications fall within the scope of “writings” covered by the West Virginia FOIA. 224 W. Va. 708, 688 S.E.2d 317 (2009).Text and instant messages are likely to be viewed in the same light but would have to meet the test established by the FOIA’s 2015 amended definition of “public record.” Thus, text or instant messages found on electronic devices or other hardware owned, paid for or leased by a public body would be subject to disclosure if prepared or received by a public body and its content or context relates to the conduct of the public's business. W. Va. Code § 29B–1–2(4) (emphasis added).

    It is possible that the West Virginia Court may require disclosure upon a finding that private matter text or instant messages have been used as a ruse to conduct public business while avoiding FOIA disclosure requirements.

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  • Wyoming

    No Wyoming cases have yet addressed this issue, but the broad definition of a record as including electronic communications should include text or instant messages.

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