Text messages enter public-records debate

WASHINGTON -- Those supposedly private messages that public officials dash off on their government cellphones to friends and colleagues aren't necessarily private after all.

Courts, lawyers and states are increasingly treating these typed text messages as public documents subject to the same disclosure laws — including the federal Freedom of Information Act — that apply to e-mails and paper records.

"I don't care if it's delivered by carrier pigeon, it's a record," said Charles Davis, executive director of the National Freedom of Information Coalition at the University of Missouri. "If you're using public time or your public office, you're creating public records every time you hit send."

A Texas judge agreed in December, ordering the city of Dallas to turn over e-mails written by some city officials as well as messages sent on handheld devices such as cellphones.

Journalists in Detroit are pressing for a similar ruling. Several media outlets, including the Gannett-owned Detroit Free Press, have sued the city for access to text messages Mayor Kwame Kilpatrick sent using his pager. Gannett also owns USA TODAY's parent company.

Through an independent source, the Free Press already has obtained thousands of text messages that seem to confirm the married mayor and his top aide were having an affair and had decided to fire a deputy police chief investigating the mayor's personal conduct.

Herschel Fink, a lawyer representing the Free Press, said there's no doubt the text messages are public.

"The lesson to public officials is don't do anything crooked because there are myriad ways you can be found out," he said. "And this is one of them."

Kilpatrick's messages were saved for several years because his pager came from a company that archived them, Fink said.

But many such messages don't hang around long enough to be retrieved. They may remain stored inside a pager or cellphone for only a few hours, depending on the device's storage capacity.

Some consider the casually written text messages more like conversations than e-mails and say they don't meet the standard of a traditional public record.

Text messages sent via cellphone are stored on the cellphone company's servers or backup tapes, but they disappear as those records are purged.

Even if the actual text messages have vanished, advocates for open government say the logs of such conversations — which would look similar to a phone bill listing called numbers — should be made public.

That's what Thomas McAfee got last year when he asked the University of Arkansas for the text messages and other cellphone records of the school's head football coach, Houston Nutt. McAfee, an avid Arkansas football fan, wanted to see whether a school booster was unduly influencing Nutt's play-calling decisions.

Arkansas' public records law doesn't mention text messages specifically, but it does cover "electronic or computer-based information."

The logs McAfee got from the school show Nutt not only communicated with the booster but also frequently used his university-issued cellphone to text message a female TV news anchor. McAfee subsequently asked the school's board of trustees to investigate the conduct of Nutt, who is married. Nutt has denied any improper relationship.

State lawmakers in New York are working on a revision to the state's open records law that would specifically add text messages to the types of documents covered. Davis, at the National Freedom of Information Coalition, said that shouldn't be necessary.

"If every time a new technology emerges we're going to argue it's not a public record, then our view of public records is very cramped," he said. "If it's not a piece of 8x10 glossy white paper, then it's not a public record? We've got to embrace the future."