7. Text messages and other electronic messages

We know of no request for text or instant messages under the Alabama Public Records Law, but there is no reason for that form of record to be treated any differently from any other form, especially since access to emails has already been established in this State. See Tenn. Valley Printing Co. v. Health Care Auth. of Lauderdale Cnty., 61 So. 3d 1027 (Ala. 2010).

When law enforcement requests cell phone location data, only the name of the officer making the request and the date of the request are subject to the Open Records Act, and can only be disclosed after the conclusion of the criminal investigation or prosecution.  Ala. Code § 15-5-55(i).

Text messages relating to official agency business, though not specifically included in the CPRA’s definition of public records or writings, constitute “writings” under the CPRA as they fall within “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 § 7920.545.  To the extent such writings contain information relating to the public’s business and are within the constructive possession of the public agency, public official or individual public employee they are by definition a public record.  Cal. Gov’t Code § 7920.530.

Text messages and other electronic messages are public records if they fit the definition of a public record under the Act. See 29 Del. C. § 10002(o).

A public body is required to promptly request records controlled by the public body and not in its possession, but the public body must provide an itemized written cost estimate of the retrieval costs to the requester and give the requester opportunity to decide whether to proceed. Id. § 10003(j).

Not specifically addressed. However, in March 2022, D.C.’s Board of Ethics and Government Accountability issued an advisory opinion on the applicability of the FOIA statute to text messages. That opinion stated that “the breadth of the statute, and the interpretations given by federal FOIA and sister jurisdictions to comparable statutes, support the conclusion that text messages, to the extent that their contents are government business, are public records.” The full opinion can be found here: https://www.open-dc.gov/FOIA_AdvisoryOpinion_TextMessages.

Text messages and other electronic messages are not exempt from the Act’s disclosure requirements. However, the Act does expressly provide that “[r]equests 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).

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, 922 N.E.2d 629, 372 Ill. Dec. 787; see also Quinn v. Stone, 211 Ill. App. 3d 809, 570 N.E.2d 676, 156 Ill. Dec. 200 (1st Dist. 1991).

Public business conducted within personal accounts is subject to FOIA. Better Gov’t Ass’n. v. City of Chicago, 2020 IL App (1st) 190038, 169 N.E.3d 1066 (mayor and director of Chicago Department of Public Health can function as public bodies, and communications pertaining to public business, sent and received from personal accounts, may be “public records” subject to FOIA). The purpose of FOIA is to promote government transparency and public access to government affairs. Allowing government officials to use personal devices in an attempt to evade the FOIA would defeat the purpose of the statute. Id. ¶ 20.

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.”).

There are no Iowa cases that address whether text messages are considered public records.  Presumably they are because public records include all records, documents, tape, or other information, stored or preserved in any medium. Iowa Code § 22.1(3); see United States v. Story Cty., 28 F. Supp. 3d 861, 871 (S.D. Iowa 2014) (noting there is no difference between cases that “were stored in electronic format as opposed to having been stored in hard copy format”).

Text messages can be public records. The definition of a public record includes documents “regardless of physical form or characteristics, including electronically stored information.” La. Rev. Stat. Ann. § 44:1.

Text messages and other electronic messages are public records.

Text messages and other electronic messages constitute a record. “Public record” is “broadly defined to include all documentary materials or data created or received by any officer or employee of any governmental unit, regardless of physical form or characteristics.” SPR Bulletin 1-99, “Electronic mail” (revised and reissued May 21, 2003), at ¶ 2 (emphasis added). The Attorney General has opined that emails “made or received in an individual’s capacity as a government employee” must be disclosed. Guide to Mass. Pub. Recs. Law at 9 (Sec’y of State, rev. Mar. 2020),  https://www.sec.state.ma.us/pre/prepdf/guide.pdf.  The Supervisor of Public Records has defined email as “any message created on an electronic mail system,” which in turn is defined as “a service that provides facilities for creating messages, transmitting them through a network and displaying them on a recipient’s computer terminal.” SPR Bulletin 1-99 (2003). Both the general and specific language appear to encompass text messages and instant messages.

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 (Wayne Cty. Cir. Ct. 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”) (citing Detroit Free Press, Inc. v. City of Detroit, 480 Mich. 1079, 744 N.W.2d 667 (2008).

See I(C)(5).

Text messages, and other electronic communications made or received in connection with the transaction of public business, the expenditure of public funds or the administration of public property, are subject to the Oklahoma Open Records Act and the Records Management Act, 67 O.S. §§ 201–215, regardless of whether they are created, received, transmitted, or maintained by government officials on publicly or privately owned equipment and communication devices, unless some provision of law makes them confidential. 2009 OK AG 12.

An open records officer must make a good faith determination as to the existence of public records on private hardware.  See, e.g., In re Silberstein, 11 A.3d 629, 633 (Pa. Cmmw. 2011).

Text messages and instant messages are presumptively accessible unless the governmental agency proves some exemption from disclosure applies. Under 65 Pa. Stat. Ann. § 67.102, “record” is defined as “information stored or maintained electronically.” 65 Pa. Stat. Ann. § 67.102.

Given that emails have been held to be accessible to the public no matter where they exist, instant messages and text messages must also likely be made publicly available upon proper request.  See In re Silberstein, 11 A.3d at 633; see also Hassler v. Tulpehocken Area Sch. Dist., OOR Dkt. No. AP 2019-0455 (July 18, 2019) (requiring the disclosure of text messages exchanged during a school board meeting between the superintendent and a board member).

Private matter messages on private hardware likely need not be disclosed.  See In re Silberstein; see also Easton Area Sch. Dist. v. Baxter, 35 A.3d 1259 (Pa. Cmmw. 2012)

Virtually all of the information in a governmental body's physical possession constitutes public information and thus is subject to the Act. Tex. Att'y Gen. ORD-12267 (2010) (suggesting that instant messages are subject to public disclosure if they are collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business by or for the governmental body).

Information is within the scope of the Act if it relates to the official business of a governmental body and is maintained by a public official or employee of the governmental body. Tex. Gov’t Code § 552.002(a). Thus, to the extent text messages relate to the official business of the governmental body, they are subject to the Act.

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.”  The Vermont Supreme Court recently 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. Attorney Gen. of Vt., 2017 VT 99, ¶ 12, 178 A.3d 1000 (Vt. 2017).

Text messages are covered by the Act.

Text messages that otherwise fall within the definition of “public records” are subject to disclosure under the PRA, even if they are held on a public employee’s personal device. Nissen v. Pierce Cnty., 183 Wn.2d 863, 357 P.3d 45 (2015).

Wisconsin has not addressed this issue, but text messages and other electronic messages likely fit the definition of “record” under Wis. Stat. § 19.32(2).