The grave risks of text messaging for public agencies

Many public sector organizations still have not set up policies to preserve text messages in the same way they save and manage emails.

Texting is now woven into the very fabric of American life, yet most government agencies still have not gotten the message.

Text messaging is regularly used by 97 percent of smartphone owners in this country, and it is the phone feature used most frequently, according to findings by the Pew Research Center. In fact, the convenience of mobile messaging has made texting one of the main ways public sector employees now communicate official business, so those records must be preserved.

However, many public sector organizations still have not set up policies to preserve text messages in the same way they save and manage emails. This lapse could become a grave error when agency officials are faced with an open records request or an e-discovery or litigation event. Text messages are considered public records when their content relates to the business of the government agency, even if those messages are sent using personal smartphones.  

Many government organizations retain only their email records, claiming the retention of other types of electronic communications would be too expensive or complex to administer. They also fail to realize the responsibility to retain text messages falls on the organization or employee who created the record -- not the agency’s phone carrier. Some phone carriers retain texts for only a few days after the date of transmission, and retrieving that data may require a court order.

Yet these complexities -- including multiple devices, different operating systems  and whether the text messaging in question took place on a government-owned or personal device -- do not excuse public officials from retaining texts related to public business. The agency is solely responsible for finding, preserving and producing the text data in a timely manner for e-discovery, litigation or freedom of information requests. Any text that contains official government communications must be preserved.

In addition, taxpayers may be upset to learn when their representatives must pay legal expenses and other fines caused by missing text records. When public records cannot be produced quickly, it sends a troubling message about the agency’s transparency and accountability and may erode the public’s trust. Text messages, therefore, must be brought into the open for public records supervision and retention -- just like emails.

Government officials only have two options: either forbid employees from using texts for work purposes or implement a platform to archive, supervise and produce text messaging data. Obviously, outright bans on text messages are no longer viable. Therefore, the burden falls on agency officials to implement clear procedures for retaining text records.

To make texting safe and bring it into compliance, policies must define what types of business correspondence is appropriate for text messages. Rules should also be created for the capture and retention of texts. Employees must understand that it is the content and function of the message that determines its status as a business record, not the device on which it was sent or received.

Text messages must be archived alongside other electronic communications including emails, social media, websites, instant messages and cloud-based collaboration platforms. Open records managers, legal teams and government leaders should deploy a comprehensive computer platform that can be used to store and review all these digital records in one place.

Government organizations that implement a comprehensive archiving platform will soon realize the benefits of increased efficiency and transparency. Those that delay run the risk of being unresponsive to public records requests and e-discovery events. In turn, they may harm the agency’s reputation while paying out costly penalties for noncompliance. 

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