Dear Legal Mailbag:
As a faithful reader of Legal Mailbag, I read your explanation last week about the Freedom of Information Act, and I was surprised to learn that text messages about school business may be subject to disclosure if requested under the FOIA. But being a creative sort, I wonder if I have an out.
My district has not provided me with a cell phone, so I use my personal phone for both school and personal messages. That leads me to two related questions. First, since I text on my personal cell phone, do I really have to worry about FOIA requests? What I do on my time on my cell phone seems private to me.
Second, on the odd chance that Legal Mailbag will dash my hopes about my personal cell phone, I wonder if I have any obligation to retain these texts. To save space on my phone, I have it set to delete text messages after 30 days. Are there requirements for retaining and saving FOIA-able records?
Thank you for your questions. You will get your money’s worth today.
First, Legal Mailbag must confirm your suspicion that what is a “public record” does not depend upon where or how the record is created. The statutory definition reads as follows:
(5) “Public records or files” means any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, . . . whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.
Conn. Gen. Stat. § 1-200(5). A text about school business would certainly “[relate] to the conduct of the public’s business,” whether it is created on a district-owned or privately-owned cell phone.
You will note, however, that the record must be created or received by a “public agency,” a requirement that may or may not apply to you. Legal Mailbag admits that the definition of “public agency” is not totally clear; the definition of “public agency” includes “public officials,” but you do not identify the position you hold. Clearly, a superintendent or assistant superintendents are “public officials,” and their texts related to school business would be public records subject to the FOIA. The same is probably true of a school principal. However, a teacher may well not be considered a “public official.” If you are a teacher, you may be off the hook!
For the sake of answering your second question, Legal Mailbag will presume that your texts are public records subject to the FOIA. In such cases, they are subject to the requirements of the Record Retention Schedule of the Public Records Administrator. That schedule addresses the various records that public agencies, including boards of education, are required to keep, including General Administration Records and Education Records. The category of record (and the related retention period) does not depend upon the type of record (e.g., paper, email, text), but rather the information contained in the record. Accordingly, the Public Records Administrator has explained that electronic records must be retained for the same period as their paper analog.
The Public Records Administrator has provided further guidance in this regard. DiBella, General Letter 2009-2 (June 30, 2009). That guidance relates to email, but the rules are the same for text messages. There, we read that public officials must determine whether an electronic record is transitory, routine correspondence or other correspondence. The Public Records Administrator has described transitory records in part as follows: “Transitory email does not set policy, establish guidelines or procedures, certify a transaction, or become a receipt.” Fortunately for public officials who use text messaging, there is no record retention schedule for such transitory text messages. However, some text messages could properly be classified as routine correspondence, which must be retained for two years, or other correspondence, which must be retained for the period specified in the Records Retention Schedule for that type of correspondence.
In short, your text messages may or may not be public records, and if they are, they may be transitory, routine correspondence or other correspondence. Legal Mailbag suggests that you be careful not to do school business by text (though you can certainly communicate about school business by text — e.g., “Let’s meet up after school to talk about the new curriculum”). If your texts are thus transitory, you will be able to delete them at will without concern, whether or not you are a “public official.”
Originally appeared in the CAS Weekly Newsletter.