The City was scheduled to start collecting text messages on its servers Monday, but its top lawyer said she needs more time to research if they are, in fact, public records and what policy issues the Ethics Commission has regarding them.
At its Tuesday meeting, the City’s Ethics Commission was moving toward requesting Ethics, Compliance and Oversight Office Director Carla Miller to work with Assistant General Counsel Jason Gabriel to draft a letter informing City employees that text messages were public records and they needed to be saved.
Gabriel then informed the commission that the Office of General Counsel was reviewing whether or not the messages were public record. General Counsel Cindy Laquidara said Wednesday that she would meet with Miller to discuss issues brought up by the commission.
“We are trying to see whether we are following the old policy from the previous administration or the policy from the new administration. Who is covered and who is exempt?” said Laquidara.
She said she will meet with Miller and the Information Technologies Division next week.
“I will also look to see if there is anything new with policy regarding text messages in the state. We need to make sure that the legal obligation is met and staff understands the policy,” said Laquidara.
Miller said the meeting is set for Wednesday.
Laquidara also wants to understand what the Ethics Commission is trying to achieve. Does it want to have a mechanism in place to ensure the City is compliant with the Sunshine Law, referring to state public records laws, or does it want to have a mechanism to monitor the communications of City Council members during public meetings?
“That’s an investigative issue. We are not going to set this whole thing up so (the Ethics Commission/ECO Office) can catch someone. That’s why we need to have a discussion, to find out what they want to achieve,” said Laquidara.
A formal legal opinion on text messages has not been issued by the Attorney General’s Office, according to Pat Gleason, special counsel for open government in the Attorney General’s Office.
Former Attorney General Bill McCollum did offer an informal opinion on text messages March 17, 2010. The opinion, addressed to then Secretary of State Kurt Browning, described the creation of a “Sunshine Technology Team” and its efforts to determine if electronic communications could be captured, retained and disclosed under the Sunshine Law.
“The same rules that apply to email should be considered for electronic communication including BlackBerry PINs, SMS communications (text messaging), MMS communications (multimedia content) and instant messaging conducted by government agencies,” stated McCollum in the opinion.
The secretary of state was sent the informal opinion because it maintains the administrative rules defining the retention schedule for government agency email.
“There are no required retention guidelines, however, for other types of electronic communication (other than email) because the administrative rules describe them as transitory,” McCollum also stated in the opinion.
Following this information, Laquidara compared a text message to a phone call, both being transitory.
“Is there a problem with people doing substantive things through text message? We need to talk and find out what the issue is,” said Laquidara.
When asked if he considered text messages to be public records, George Gabel, a partner at Holland & Knight who lists media law as one of his areas of practice, also referred to McCollum’s informal opinion.
“It seems very clear to me that a text message communicates an idea or a direction or information just like an email does. I don’t understand why there would be any difference,” said Gabel.
He didn’t foresee the issue of text messages as public records being decided by the court.
“I can’t imagine a public agency taking the position that a text message is different in some way from an email,” said Gabel.
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