Public Records Considerations in the Era of Telecommuting

While telecommuting has previously been an option for some Washington local government employees, the current pandemic crisis has forced many jurisdictions to swiftly move most — if not all — employees to remote work. Often these employees are using private computers and devices to conduct public businesses. We have also seen a sudden increase in the use of communication technologies that may store public records outside of a jurisdiction’s control.

Telecommuting, remote work, and communication technologies present public record retention and disclosure challenges that local agencies should keep in mind as they continue to respond to the changing circumstances triggered by the COVID-19 emergency and begin to plan for a return to “normal” operations.

Background Considerations

A public record includes “virtually any record related to the conduct of government,” per O’Neill v. Shoreline, 170 Wn.2d 138 (2010). RCW 42.56.010 defines a “public record” as:

any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.

It does not matter whether the record is in digital form or located outside of the jurisdiction’s immediate control, if the record pertains “to the conduct of government or the performance of any governmental or proprietary function” it is still a public record subject to retention and disclosure requirements.

Exercising Control Over Remote Records  

How then can a local agency exercise control over its records when the records may now be located in many new places?

Physical records

If staff are removing physical records from agency premises, the agency should track where these records are going. Consider adopting a classic library checkout scheme where staff sign out records and permit files. Your checkout policy should strongly remind staff of their obligation to safeguard records and return them as soon as feasible. This is not an ideal solution and staff should be encouraged to use other means of accessing physical records if at all possible.

For any new paper records that are created or obtained by employees or officials while telecommuting, the Public Records Officer (PRO) will need to document their existence and arrange for agency access to and retention of those records.

Digital records

If your agency has the technology, the cleanest way to keep track of records is to have remote workers use virtual desktops and other technologies. Ideally, the agency’s digital records “live” on a central or cloud server that can be accessed with personal computers or other devices, but no agency records are actually stored on the personal device. The PRO will have the ability to search and retrieve all the records stored on the agency’s server but will likely not need to ask employees to search their personal devices for responsive records. 

If such technology is not available, the PRO will need to coordinate with individual employees, instructing them to perform records searches on their own devices and accounts (see MRSC’s guidance on Searching and Producing Public Records). In the future, the agency will need to take steps to migrate public records from personal devices and accounts to servers and accounts controlled by the agency.

Digital communications

Agencies should have clear policies that inform employees and officials which media they may use to communicate about public business. For more information and sample policies, see MRSC’s Electronic Records Policy Tool Kit. 

Digital communications should only occur over authorized platforms. Employees and elected officials should not discuss public business over “vanishing” messaging apps, like Confide or SnapChat, or encrypted messaging apps like WhatsApp, unless the agency can ensure the communications are retained in a manner that does not interfere with open government laws.

Agency-controlled chat technology, like Microsoft Teams, Skype, Slack, Google Hangout, etc., are subject to retention and disclosure rules that apply to public records in general. Retention requirements depend on the content of the message rather than the form. Many jurisdictions only allow employees and officials to use such apps for transitory messages with no retention value. Substantive public business should be discussed on a platform over which the agency has more control — such as email on an agency account. If substantive public business is discussed over chat apps, the jurisdiction must take steps to ensure the communications are retained and can be accessed for records disclosure.

For more on retention of digital records see Lions and Tigers and Twitter Oh My! — Records Management for Blogs, Texts, Social Media, Cloud Computing and more! from the Washington State Archivist.

Looking to the Future

We are already receiving inquiries from local governments about plans and procedures to reopen government. An important task for public records officers will be working with employees and officials to bring paper and digital records under agency control for retention and disclosure purposes to the greatest extent feasible.