When Text Messages on Personal Phones End Up in Court
Text messages can leave public organizations vulnerable to significant risks when facing an open records request, e-discovery event or litigation.
By David Ambrose
For public sector organizations, email isn’t the only type of electronic communications record that needs to be archived.
More courts are ruling that text messages must be preserved and able to be produced as well. If texts are related to government business, it doesn’t matter whether an employee uses a personal or government-issued cell phone.
Both are fair game.
Most recently, the Washington State Supreme Court ruled that a public employee’s work-related text messages sent and received on a private cell phone are public records.
The case stems from a Pierce County Sheriff detective’s request for a prosecutor’s call and text records. The detective had sued the county, claiming the prosecutor banned her from his office when she criticized him and then backed his opponent, and that he sent and received text messages in his official capacity to “take actions retaliating against her and other official misconduct.”
The prosecutor handed over a call and text message log to the county that contained dates and times of messages and associated phone numbers. But the logs did not include the contents of the messages, even though the prosecutor acknowledged some were work-related.
The detective sued the county, arguing that the records related to the prosecutor’s work should be made public. The case went to the Supreme Court, where the prosecutor was ordered to produce work-related text message content, hand it over to the county, so it could be sent to the Pierce County Sheriff detective.
The new records reality
With the public’s right to a transparent government, all records/transcripts that a public employee prepares, owns, uses or retains in the course of their job may be considered a public record.
As a result, an official’s text messages can be requested as part of an investigation, e-discovery event or litigation.
However, many organizations aren’t paying attention. Text messages aren’t governed like email or even social media records, leaving organizations vulnerable to significant risks when facing an open records request, e-discovery event, or litigation.
Best practices for text message retention
The influx of phones and other digital devices creates complexity in records retention, but there are solutions.
First, agencies need to have policies and procedures in place that cover what type of business conduct (if any) is appropriate for text messaging on employee work and personal cellphones, and lay out the rules for the capture and retention of text messages.
Second, organizations must train their employees to make sure they know that business-related text messages and other digital communications may be considered public records, no matter what device they use to transmit the communication. Employees must be aware that even if a text message seems insignificant, it’s the content and the function of the message─not the format or device─that determines its status as a business record.
Third, organizations should rely on technology to help automatically archive, index and produce text messages. The best course of action is to implement an archiving solution as soon as possible to capture text messages from every device—before it’s too late.
David Ambrose is director of technology partnerships at Smarsh where he leads public sector strategy and counsels clients on compliance and security issues. Ambrose has advised Federal and State committees on social media archiving and compliance, and has extensive experience in sales and operations with a strong technical background.