Use of self-destruct message apps -- a public records nightmare

WhatsApp has a user base of over one billion. Slack reports that, on a daily basis, more than one million users collaborate via the application. Facebook launched Workplace in 2017 and added 30,000 customers in less than one year. Individuals have many communication platforms to choose from. Plus, many of these services are offered as a “fremium” or very at a low cost making adoption (and installation) easy, and records management challenging. Especially for public entities.

Public entities across the country struggle to respond to requests for records that are generated by public officials or employees through these new communication platforms. The struggle is often played out publicly when such requests become the subject of litigation.

The most recent open records showdown is in Missouri and involves several issues. First, Missouri’s Attorney Governor, Eric Greiten is under investigation for the use of an application designed to auto-destruct message content. Two Missouri attorneys have also filed suit against the Governor regarding the use of the application. On January 18^th, the Attorney General accused St. Louis County Executive Steve Stenger of violations of Missouri open records laws for failure to produce records in a “lawful and timely manner.” The Missouri Alliance for Freedom also filed a lawsuit against the Missouri legislature and asked the Missouri Attorney General to investigate whether the State Auditor violated the State’s public records law when she failed to turn over text messages. [1] [2]

The most salacious of Missouri’s open records issues surrounds the legality of the Governor’s use of an application that automatically deletes text messages after they are read. The application, called Confide the “Confidential Messenger,” gives users the ability to “discuss sensitive topics, brainstorm ideas or give unfiltered opinions without fear of the Internet’s permanent, digital record and with no copies left behind.” The Confide application even prevents screenshots - ensuring there is no possible way of retaining a user’s message.

Missouri’s public records law is similar to open records laws in all other states which categorize a “public record” as any material (regardless of form) that is made or received regarding public business (§ 610.011). And, as in other states, all public records are required to be open for a personal inspection by any citizen of Missouri, . . . ." Wilson v. McNeal, 575 S.W.2d 802, 805 (Mo. Ct. App. 1978). The Missouri Secretary of State Records and Archives Division provides government entities with a records retention schedule which distinguishes three types of correspondence:

(1) General Correspondence, such as communications that pertain to routine matters, which are required to be retained for 1 year (GS012)

(2) Transitory correspondence that has no “documentary or evidentiary value… [such as] holiday notices, reminders of charitable campaigns, upcoming events, unsolicited vendor solicitations, etc.” (GS012.1)

(3) Correspondence which state or form the basis of policy or record important events and are required to be retained permanently (GS013)

The Governor’s office claims that the Confide messages are “transitory correspondence” and, under Missouri law, do not need to be retained. Unfortunately, the public has no way of verifying if the Governor’s messages are transitory or not. In response to the Governor’s use of Confide, Rep. Gina Mitten, D-Richmond Heights, is calling for a ban on the use of apps like Confide under House Bill 1817, which prohibits members and employees of public governmental bodies from conducting public business using software designed to send encrypted messages that automatically self-destruct.^[3] In addition, the House Speaker, Todd Richardson, is calling for a modernization of the State’s public records laws – and has specifically called out the need to address communication channels like text message through legislation.

The Federal government offers helpful guidance for states moving to modernize their public records laws and policies. Under National Archives Bulletin 2015-2, the National Archives provides the following six points of guidance to agencies:

(1) Develop policies on electronic messages

(2) Update policies when new tools are deployed or the agency becomes aware that employees are using a new tool

(3) Train employees on the identification and capture of records created when using electronic messaging accounts, including when employees use their personal or non-official electronic messaging accounts

(4) Configure electronic messaging systems to allow for automated capture of electronic messages and metadata

(5) Use third-party services to capture messages, such as a service that captures all email, chat, and text messages created through agency-operated electronic messaging systems

(6) Ensure electronic messages with associated metadata and attachments can be exported from the original system

Electronic messaging is a fluid, evolving technology and new tools are always being created. In order to affect the purpose of an open, transparent government, public entities must adopt technology to capture all communication channels that officials or employees use, whether it be email, text message, instant message collaboration. State legislatures should look to modernize their State’s public records laws to specifically address applications that are designed to destroy messages, like Confide, SnapChat and WhatsApp.

As public sector organizations work to update their policies, specifically to outline and train on the use of text messaging for work, they must clearly define not only which messaging applications and platforms are allowed, but also which types of messages will be subject to capture and review. Transitory or not, it is in the organization’s best interest to retain all text messages for later search and review as needed.

Related record retention resources for public sector agencies:

Public record retention policy template

Sample template for state and local governments to address use of text messaging and electronic communications created by public employees and officials.

Lessons in Archiving for Public Sector Agencies – by Don DeLoach

There’s a popular myth among government organizations that if you don’t physically retain the communication, you can’t get in trouble for failing to produce it. This is false.