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 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 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). Moreover the Public Records Law “applies to all government records generated, received or maintained electronically, including computer records, electronic mail, video and audiotapes.” Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 4. 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.
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.