A recent case in Michigan has raised an interesting question, are government officials’ text messages public records?
In the Michigan case, the Detriot Free Press requested copies of text messages between former Detroit Mayor Kwame Kilpatrick and an aide with whom he was having a romantic relationship. Some of those text messages were personal in nature, but were sent on city owned pagers. As the FOI Advocate and Free Press report, the court ruled that the text messages are public records and that they had to be released under the Michigan Freedom of Information Act.
So what about Connecticut?
Here is how the Connecticut Freedom of Information Act defines a public record:
“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, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.
The Connecticut FOIA also has an entire section on “disclosure of computer-stored public records.” For those of you reading along at home, that is Section 1-211. Here’s what that section says in part:
Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made.
So taken together what does that mean? Are government employees’ text messages public records that anyone can request to see?
My lawyerly answer is: sometimes.
If the text messages are about public business using government issued equipment, the answer will likely be yes. Of course, there are exceptions, many of which I will address in future posts.
But what if the text messages do not relate to public business?Say for example, what about text messages about a private affair?
The answer may make Mr. Kwame wish he was a mayor in Connecticut instead of Illinois. In our state, he could have argued that his romantic text messages weren’t public records because they don’t relate “to the conduct of the public’s business.” The Free Press would have argued that an affair between a mayor and an aide is the public business, but that’s certainly not a clear cut argument.
And what about messages about public business on private equipment?
Stay tuned for an answer.