Sending a text message by cellphone is quick and easy. Saving those messages is anything but — and that’s a problem when public officials are the ones texting.
State law says governments have to keep certain communications, often for years, but texts present a quandary: how to index and store them when the messages exist on dozens or hundreds of devices rather than a central server.
Tacoma is among the local governments grappling with this collision of technology and records law.
Records retention becomes even harder when public officials send and receive texts on personal phones. The device used to transmit a text doesn’t matter, the Washington state Court of Appeals ruled earlier this month when it said business-related call records and text messages from Pierce County Prosecutor Mark Lindquist’s personal cellphone are not private.
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Like most cities, Tacoma has no consistent method to ensure the preservation and disclosure of text messages.
That might not prompt concern when the message is a City Council member wishing a fellow council member happy birthday or alerting a colleague to a schedule adjustment. Council members did both in the text messages The News Tribune received following public records requests for text messages sent in January and May to or from members of the Tacoma City Council, the mayor and the city manager. (Among the messages produced by the city were council members’ text-message responses to inquiries from a News Tribune reporter.)
But other messages showed city officials used text messaging to also discuss city business — creating public records that are required to be kept and disclosed on request. Yet the city has no way to quickly find and produce those records, leaving its compliance with the records law dependent largely on the diligence of individual city officials.
Governments’ duty to preserve the records is no different for text messages than it is for written documents, the state archivist says. “A public record is a record regardless as to form,” Steve Excell said.
Among the 375 text messages Tacoma disclosed for the month of January were more than two dozen about a problem facing the multi-million dollar Point Ruston development, which straddles the Tacoma-Ruston city line. They help illustrate the kind of discussions public officials are having via text messages and how spotty public disclosure of those communications can be.
The discussion began when Councilman Ryan Mello sent several texts to then-Councilman Joe Lopez on two ordinances the town of Ruston passed during a December special meeting, one prohibiting off-premises parking garages and another changing design standards for the development.
“The off-premises garage is the more concerning, immediate issue,” part of Mello’s texts say. Lopez texted back to Mello: “We need to figure out our next steps. I think we need to inform the Mayor.”
Two days later, City Manager T.C. Broadnax texted Lopez, two other council members, the mayor and Planning and Development Services Director Peter Huffman, saying a meeting between Huffman and Ruston officials went well.
“I would recommend that we hold tight and not do anything adverse until we’ve discussed how we plan to move this project/issue forward collaboratively,” part of Broadnax’s text to the group reads.
Broadnax’s advice is captured in the text messages Lopez gave records officers working to fulfill the newspaper’s request. The city clerk’s office said Broadnax had no responsive records.
Broadnax later told a reporter he had deleted all of his texts from his personal cellphone because he doesn’t like clutter. He has since been assigned a city cellphone, and he said Friday that he’s saving all of his texts in a file for future records requests.
Council members’ response to the newspaper’s public records request likewise varied widely. Some council members provided many text messages — in one case, going as far as disclosing an alert that a prescription was ready for pickup, clearly not a public record. Others turned over some messages, but not all. The texts they didn’t disclose showed up instead in the records produced by their colleagues.
A couple of other council members provided details of the text messages sent and received but not the content of the texts. For January, two did not provide any texts, one because he said he did not text for city business and the other because he broke his cellphone. In May, seven did not provide any texts, one because his cellphone had been stolen and others because, as they told the city clerk’s office, they had no city-related texts on their personal devices.
City Attorney Elizabeth Pauli said the city doesn’t have a consistent way to retrieve or store text messages despite a state law that says communications that transmit substantive information about city business are required to be kept for several years depending on the message contents.
A city official can delete text messages, and the city has no backup. When a phone is lost, stolen, destroyed or traded in, texts are not transferred to a new phone. Even when the message survives, the city has no way to know of its existence unless it checks each and every phone.
Then there is the challenge of how to produce the records. To answer The News Tribune’s request for text messages, the city saved some to a spreadsheet program. Others were contained in a text file. For two council members’ texts, the city sent several pictures of a phone sitting on a table with individual text messages visible.
Toby Nixon, president for the Washington Coalition for Open Government and a Kirkland city councilman, said he tries to avoid creating text messages because they are so hard to track and retain. His solution is to forward important text messages he receives to his city email account, where messages are more easily retrieved for public records requests.
“We carried on the discussion via email,” he said.
Excell, the archivist, said his office doesn’t have a recommended way to save text messages. Even the state archives, charged with maintaining the history of the state, so far doesn’t have a single text message in it.
“This is a hot topic partly because the technology changes so quickly. It’s hard for people to keep up,” Excell said.
It’s important to preserve communications to and from elected officials, which in many cases would be required to be kept in perpetuity because they are part of the history of the governing body, he said.
City spokeswoman Gwen Schuler said there’s no way for the city to automatically save texts as they are created, nor does an existing policy outline how workers should preserve texts.
Pauli said there are discussions “underway” on how to preserve text messages for city business.
“We haven’t historically had a process for that because people weren’t historically texting. As you know, there’s no easy way to do retention on that,” she said. “It’s a continuing discussion within the city and between cities on how to ensure those things.”
The city of Everett has one possible answer: It forbids texting for city business on any device without the mayor’s approval. The city developed the policy after receiving a records request in 2009 for text messages and having difficulty retrieving texts off of the device.
“Staff are made aware of the policy when they are hired and text messaging is disabled on city phones to the extent possible,” said Everett spokeswoman Meghan Pembroke in an email.
Councilman Marty Campbell said in June that the News Tribune’s records request made him rethink using text messages for city business. That could be partly why the second batch of records for May had only 114 messages.
“Certain texts are a public record, so be more aware,” Campbell said.