Public Records Violations Roundup, Fall 2020

November 20, 2020by Smarsh

Public agencies at all levels of government are required by federal and state law to preserve all electronic communications records. If an agency is found to have violated this responsibility, it may be liable for legal fees, fines and possible reputational damage. However, these instances can be good opportunities to review how preventative measures were lacking.

Today, the boundaries between work and home life are blurring. Government-issued laptops are often used at home, staff can check work emails on personal devices, and personal conversations can naturally change to work topics flowing from one device or app to another. This merging of work and personal communications can be a major recordkeeping challenge for public organizations.

We’ve put together a list of recent public records violations to show what can happen when appropriate communications preservation and retention obligations are not fulfilled. These cautionary tales can provide insights to help you adjust policies and actions to reduce the risk of consequences for non-compliance with public records laws.

Public records: text messages

Text messages sent from a state-issued mobile device between a state agency director and a vendor’s representative in Arkansas came under the spotlight after they were requested under the state’s freedom of information act. The messages are at the center of a personal relationship between the director and representative that raised questions about three high-cost state projects with that vendor.

A circuit court said it had reviewed each text message at issue and found they "inextricably intertwined personal and public business," and the judge ruled that the text messages were public record and must be disclosed in their entirety.

In another case, a city in Florida planned to remove more than 1,000 on-street parking spaces without a commission vote. A paralegal consultant requested all text messages concerning the parking issue that were exchanged between the city’s mayor and police chief.

The city’s policy required any employee or commissioner to save screenshots of work-related text messages to their work computer. If requested, the city clerk would ask for the applicable screenshots and review for any inconsistencies before providing the information to the requester. This can be time-consuming, and without digital tracking, records may be incomplete, edited or deleted by users in the process.

“Whether it’s sent or received on a private device doesn’t matter. It is essential that the government properly archive text messages so citizens can readily know what their government is up to. In this case, the city took far too long to produce records that it should have been storing in accordance with the Public Records Act,” the consultant said.

The city took immediate steps to correct its policy. Previously, they had offered employees and officials an allowance for personal phones that could be used for work-related matters. They’ve now moved to agency-issued mobile phones, which are equipped to store and retrieve communications data, including photos and text messages.

Public records: email

In an ongoing case, a city in Colorado is involved in a legal dispute about a city official’s use of a personal email account for what a local news organization considers government-related business. The official corresponded through his personal email account with two nonprofit executives involved with some proposed ballot initiatives. While the city argued that the official was merely expressing his opinions and the emails were not subject to disclosure under the state’s open records act, a local news organization disagreed.

The news organization filed a lawsuit alleging that the emails contained a demonstrable connection to government business, asserting that the emails are public records subject to disclosure under the state’s public records act.

“Simply because an email message was produced by an elected official on a personal email with a statement that it was sent in his personal capacity does not take it out of the ambit of ‘public record.’ Rather, it is critical to ask what the communication includes, rather than how it was produced,” the complaint stated.

How to prepare for public records requests

By making the records response process easier, more efficient and less costly, government agencies can avoid adverse consequences of incomplete or late public records responses. In a previous blog, we covered five ways to strengthen your processes and protect your agency:

Move to digital processes whenever possible, to keep processes functioning despite major disruptions and allow employees to stay connected
Check your state’s retention schedule to make sure you’re saving records for the required duration
Use a comprehensive technology solution to capture and archive electronic communications from all channels and devices used by employees, including emails, texts and chats
Create a strong records retention policy that accounts for all necessary technology and procedures
Train staff on appropriate business communications with documented usage policies

We would also add that there is flexibility when it comes to mobile device policies. Agencies can issue government phones or allow personal devices to be used for work-related business. If personal devices are preferred, government agencies can use a mobile containerization solution for capturing and archiving only work-related communications content.

Managing government archiving in the digital age requires that your organization is prepared but agile. There have been a lot of changes in the past several months that will continue to require policy adjustments and technology controls. Staying on top of evolving communication trends and tools will help ensure you're meeting your information governance objectives.

Learn more about how government agencies can reduce the risk of public records violations using a modern approach to records management.

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Smarsh® is the recognized global leader in electronic communications archiving solutions for regulated organizations. Smarsh provides innovative capture, archiving, e-discovery, and supervision solutions across the industry’s widest breadth of communication channels.

Scalable for organizations of all sizes, the Smarsh platform provides customers with compliance built on confidence. It enables them to strategically future-proof as new communication channels are adopted, and to realize more insight and value from the data in their archive. Customers strengthen their compliance and e-discovery initiatives and benefit from the productive use of email, social media, mobile/text messaging, instant messaging and collaboration, web, and voice channels.

Smarsh serves a global client base that spans the top banks in North America and Europe, along with leading brokerage firms, insurers, and registered investment advisors. Smarsh also enables state and local government agencies to meet their public records and e-discovery requirements. For more information, visit www.smarsh.com.

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