This page provides an overview of various approaches to text messaging policies for local government staff and elected officials including sample policies.
Text messaging has become an important part of communication, and is increasingly used as a way to communicate for city staff and elected officials. Like many other forms of communication, it is important to remember that text messages that relate to local government business can be considered public records. In 2015, the decision in Nissen v. Pierce County clarified this by stating that, “text messages sent and received by a public employee in the employee’s official capacity are public records of the employer, even if the employee uses a private cell phone.” (Emphasis added.)
All local governments should develop a clear policy for how text messaging can or cannot be used by employees and elected officials, as well as how text messages will be managed and retained to satisfy the requirements of the Public Records Act (PRA). Below are various policy approaches that other jurisdictions in Washington have taken. MRSC also highly recommends reviewing the Washington State Archives Text Messaging Guidance Sheets before developing a policy, particularly the information regarding the retention and management of text message records.
One approach taken by agencies related to text messaging is for the agency to prohibit this activity as a form of communication for agency business based on concerns about the challenges of managing and retaining text messages as public records and distinguishing between agency-related messages and personal messages.
Generally No Texting but with Some Exceptions
The following jurisdictions have general prohibitions on texting but also recognize that texting can be a particularly valuable form of communication in certain situations. As such, these jurisdictions have relatively strict rules and processes related to texting as an approved activity.
- Benton County Portable Electronic Device Usage Policy Sec. 5.h – Generally no texting. Exceptions are allowed but must be approved in writing by a department head or elected official and must be coordinated with Central Services in order to “effectuate the archiving of such text messages.”
- Everett Electronic Communications Policy, Sec. 2.3G – Does not allow texting without approval from the Mayor or Mayor’s designee. Requests for exceptions must also include proposed procedures for meeting records retention requirements.
- Prosser Cell Phone Allowance – Does not allow any texting on mobile devices unless the device has been synchronized with the city’s computer system so that the records are retained.
Texting Allowed but Records Retention Responsibilities are Emphasized
The following jurisdictions have policies that generally allow text messaging but also emphasize that text messages can be, and often are, public records, and explicitly state who is responsible for retaining those public records.
Practice Tip: In this context agencies are legally required to be the legal custodians of all agency records that have retention value, regardless of the form or source of the record.
- Grandview Personnel Manual Ch. 25 Sec. 3.D – Does not have any specific policies regarding text messaging but makes it clear that work-related text messages are subject to public disclosure and that the employee is responsible for retaining such records in accordance with law.
Allow Texts of Transitory Nature Only
Another approach that some agencies are taking regarding text message policies relates to making a clear distinction between “transitory” and “non-transitory” records. Based on guidance from the Washington State Archives, “transitory” records have limited retention value and can be deleted when no longer needed for agency use.
Practice Tip: If a Public Records Request (PRA) is made, and there are transitory and/or other records that exist which are responsive to that request, those records need to be made available to the PRA requester (subject to possible exemptions), regardless of whether those records could have been deleted as transitory records before the agency received the PRA request.
From a practical standpoint, this approach requires that agency staff and officials properly distinguish between a transitory vs. a non-transitory record. For agencies that go with this approach, we recommend that: (1) the policy is clear about what constitutes a transitory record, including examples of such records; and (2) the policy is clear about what is explained above in the “Practice Tip” regarding transitory records that are responsive to PRA requests.
Practice Tip: Contact the Washington State Archives (WSA) regarding their latest thinking on what constitutes a “transitory record,” at 360-586-4901 or firstname.lastname@example.org.
The following policy from Kent provides samples and guidance about what is regarded as a transitory text, and the example from Olympia also makes a distinction between transitory and non-transitory texts.
- Kent Text Messaging Policy – Allows users to send transitory text messages from mobile devices (city-owned or not) with clear guidance on what constitutes a transitory text message. Also says that if a public records request has been made, even transitory texts need to be retained and produced. (Note: this policy was developed prior to the Nissen decision and Kent is currently updating their policy to reflect that case.)
- Olympia Electronic Records Policy 4.4.4 – States that employees should only use text messaging for transitory messages. Specifically outlines other information that should not be sent via text (“policy, contract, formal correspondence, or personnel related data.”) Also says that any text messages that are work-related and need to be kept should be immediately transferred to the city’s network or devices.