Every state in the U.S. requires government agencies to collect and preserve internal and external communications related to government business. Agencies at all levels must be able to produce documentation to satisfy public records requests or support e-discovery events and investigations.

The full scope of communications included in those laws, however, isn’t always clear or current. Government employees are corresponding through text, instant messaging, and social media—and adopting new platforms as they emerge. Personal and professional conversations comingle across applications and devices.

Public records legislation has been slow to adapt to these changes in communication preferences. Many states aren’t prepared to fulfill complete records requests that include text, IM and social, or they simply choose not to because of loopholes in their records laws.

In Colorado, some officials have taken advantage of gaps in the Colorado Open Records Act (CORA) by using encrypted messaging applications and deleting communications that don’t have definitive retention specifications. These dubious practices have been drawing attention from watchdogs like the Colorado Freedom of Information Coalition and The Denver Post.

To get ahead of this potentially unlawful ambiguity, states like Texas are updating their public records laws (Senate Bill 944) to explicitly outline the parameters of what constitutes government-related communications. They are including new and emerging channels and adopting modern use and data retention policies, in order to avoid getting stuck in a legally, financially and/or reputationally vulnerable place.

Are text messages part of the public record?

Official laws vary by jurisdiction, but text messages are indeed part of the public record. State governments require that all electronic messages sent from government-issued devices, as well as government communications sent from privately owned devices, by law must be treated as public records. Government agencies that have not implemented a solution to capture and retain SMS/text and mobile messaging content can still be held responsible in court if communications an employee sends, regardless of device, prove to contain official business information.

Unfortunately, agency policies for records retention have some room for improvement. Too often, governments fail to capture and store SMS/text data, or they believe existing solutions are sufficient. But those solutions are often manual and time-consuming, like paper filing or photocopying a phone, or collecting devices from employees only after a text message request is submitted.

Some government agencies might have official policies that prohibit employees from using text for work communications, but that is unrealistic in practice. From a “running five minutes late” text to a quick debrief of a committee meeting to an important planning decision, governments are responsible for recording all business communications of employees—and they must put both use policies and retention solutions in place to account for such.

In partnership with GovLoop, we surveyed over 300 applicable government employees at the state, local and federal levels who are involved with record keeping. While 29% of respondents said their agency is archiving text message content, 37% said they were not archiving text and 34% didn’t know either way. Nearly half of those surveyed—49% of respondents—had little or no confidence they could respond to a request for text records.

Mobile device use policy

How are government agencies legislating text message archiving?

In Texas, the governor has gotten ahead of the issue by amending its Public Information Act to add a set of new rules requiring the retention of text messages, including heavy penalties for noncompliance.

Robert Cruz, Vice President, Information Governance Solutions at Smarsh was quoted in the article. “I think it’s a very explicit step, but what we’ve seen with other states, is that open records requirements imply that any communication device is fair game." Cruz said.

“What constitutes a record is really about the content and the context of the communication, whether it’s email or social media or face-to-face—if we’re talking about the business of the agency’s work or its ongoing activities, then that obligation applies.”

Also quoted in the article was Daxton Stewart, a media law professor at Texas Christian University. “[SB 944 is] a recognition of what it’s like in the modern age and how people communicate, particularly our public officials. They have private devices and they can text on them, email on them, they might be using encrypted chats apps on them,” Stewart said. “If you’re doing any of those things, you need to be finding a way to document and keep those records for request.”

How can governments prepare for requests that include text messages?

When no solution exists to capture and archive employees’ text communications, public sector organizations are at risk of fines and litigation due to incomplete records and, on occasion, inability to respond to requests. Some organizations put the onus on employees to save and store their texts, but individuals can fail to remember to do so or fail to understand the importance of the policy. And when employees are unaware of what their responsibilities are, that risk jumps higher.

Choosing the right technology solutions and policies to manage electronic communications is vital for government agencies today. New communication applications and platforms will emerge, and records requests will continue to flood government inboxes.

Agencies should select an archiving partner that has direct relationships with leading mobile carriers to natively capture text message content. When messages are automatically indexed directly through carrier APIs, threaded conversations can be easily searched and viewed in proper context. For all electronic communication records stored in a comprehensive archive, a single view that integrates different channels is necessary for accuracy and completeness of record retrieval, as well as ensuring expediency in the process.

A solution for capturing and archiving text messages

As a result of SB 944, Brazos County in Texas chose Smarsh mobile archiving to capture and archive text messages. Prior to this, their public information officer would need to track down individual employees and their devices to respond to a public records request.

Agencies that have a bring your own device (BYOD) policy simply need to have their employees install the Smarsh mobile archiving application to their device. A business line is created, and all texts sent or received by the business line is captured. The employee’s personal line won’t be accessed or archived.

On a recent Smarsh webinar, guest presenter Bruce Erratt, Chief of the Brazos County Attorney’s Office’s Civil Division, highlighted the county’s policy changes to include retaining SMS/text messages.

“Text messaging archiving was the major priority for us,” says Erratt. “At the time, we didn’t have any way of capturing and storing text messages. We had a lot of private phones that got a county allowance for being used on government business.

We ultimately chose Smarsh because it integrated well with our phone systems,” Erratt continued. “Text messages are automatically archived and immediately searchable by our public information officer.”

To learn more about Brazos County’s experience or how Smarsh can help agencies stay compliant with Texas Senate Bill 944, watch the full webinar here.

More insights from our survey of public sector officials in this guide: The State of Electronic Communications in Government

Read how federal agencies manage retention policies for public records in: The 2019 Federal Guide to Text Messaging Policy and Retention