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 Cty., 61 So. 3d 1027 (Ala. 2010).
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 § 6252(g). 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 § 6252(e).
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).
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 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 (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”).
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).