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Thirty years ago, John Q. Public Servant had a report he had to produce for his boss, the county manager.
He was tired and his kid was sick, so he left work a bit early to work on it at home.
He sat down at the kitchen table after grabbing one of his kid’s leftover school notebooks, fished a pen out of his wife’s purse and began writing out a rough draft. By midnight, he was slipping sheet after sheet of typing paper into the family’s IBM Selectric to type up the final draft.
The next morning, because someone needed to stay home with the sick kid, John’s wife drove to his office to drop off the finished report on her way to work.
Quick quiz: was John Q. Public Servant’s finished report a public record that could be subject to disclosure under Virginia’s Freedom of Information Act? How about the rough draft?
If you answered yes to both of these questions then you’ve mastered the key principle of public records in Virginia: how the record was created, how it was delivered, how it was sent, whose equipment was used (and even whether it was a final report or a draft one), none of that matters when it comes to determining what a public record is.
What matters is the content of the record.
How unlikely it would be for any of us to think that just because John used his family’s materials — notebooks, pens, typewriter — to write the report, or that just because John’s wife delivered the report, that the report was somehow NOT a public record.
Yet, time and time again, the public, public employees and officials, are surprised to learn that emails and text messages sent and received from their personal smart phones, and their personal email accounts and phone numbers are also public records when they are about public business.
Simply because these records could be subject to disclosure does not mean that all data on that iPhone or all the other messages in that Gmail account are also subject to disclosure, though. After all, the math homework in John’s kid’s notebook isn’t subject to FOIA, and nor are the letters John’s wife happened to have in her car as she drove the report to John’s boss.
Text messages in particular seem to challenge what we all know to be true in a pen-and-paper world. We send hundreds of texts, thousands even. We dash them off so quickly, glance at them so haphazardly, delete them without a second thought. When we use voice-to-text and autocorrect, we barely even have to think of the words we use.
So it is not surprising that government employees generally, but more specifically elected officials, conduct public business through texts, personal email accounts or any one of countless other messaging apps. At best, it is about convenience because it can be a hassle and a half to toggle between work and personal and government accounts or devices.
At worst, it can be used in an attempt to circumvent public scrutiny that would be assumed if .gov accounts or devices were used.
The Freedom of Information Act Advisory Council, in fact, is weighing issuing guidance on public officials using their phones to text while conducting public business at public meetings.
Be it careless or nefarious use, the reality is that many public records are being lost to history and kept from public oversight when they are deleted and not managed as all other public records are.
We should not throw up our hands in resignation that the horse has left the barn. Government entities and agencies should have policies and best practices in place to ensure that records are captured, managed, maintained and made available for search in response to a request for records.
John Q. Public Servant should have the latest and most convenient tools at his disposal, but we should not accept an altered understanding of what a public record is simply because technology marches forward.
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