Today’s burning question: Are text messages subject to disclosure under the public records laws?
Answer: Yes, work related text messages sent or received by a public employee are a public record and unless they fall under one of the listed exceptions are subject to disclosure.
Today’s burning question FOLLOWUP: We were in an arbitration proceeding and we noticed one of the deputy chiefs texting on his department-issued cellphone. We were concerned that he was improperly texting a witness – so we requested copies of his texts through the state’s public records law. Are we entitled to copies of his text messages?
Answer: More than likely, yes. Again, it would depend on whether the texts were in fact work related and if so whether they fit within one of the listed exceptions, such a confidential labor negotiations strategy, attorney client privilege, medical confidentiality, matter under investigation, etc. If they fit within an exception then the city can refuse to disclose them. If not, they have to turn them over.
FOLLOWUP to today’s burning question FOLLOWUP: What if the city somehow loses the cellphone shortly after we request it?
That is the predicament that the city of Orlando finds itself in as the firefighter’s union has requested the Florida Department of Law Enforcement to initiate an investigation into the city’s failure to turn over Deputy Chief Chad Williamson text messages.
IAFF Local 1365 is accusing Chief Williamson of falsely reporting his cellphone being missing to avoid having to turn over the incriminating messages. Chief Williamson claims the texts were personal, and that he turned the phone in to the city when he upgraded to a new one. That, coincidentally, was the same day the union requested the text messages. Union President Steve Clelland was quoted as saying “It doesn’t pass the smell test.”
What is the penalty for a violation of the public records act? That is going to vary state by state. In some states any violation is a criminal act. In Florida, certain things are non-criminal, but certain things are criminal.
(1) Any public officer who:
(a) Violates any provision of this chapter commits a noncriminal infraction, punishable by fine not exceeding $500.
(b) Knowingly violates the provisions of s. 119.07(1) is subject to suspension and removal or impeachment and, in addition, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) Any person who willfully and knowingly violates:
(a) Any of the provisions of this chapter commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(b) Section 119.105 commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
It would appear in any event that the failure to take steps to protect and preserve public records (in this case the text messages) would constitute a civil (non-criminal) violation of the act.
However, if the union can prove its allegations that public records were intentionally withheld, it would appear to be a misdemeanor under 119.10(2)(a). If the phone were to have been intentionally lost or destroyed it could also be considered a separate crime, tampering with evidence/spoliation. Certainly the penalty for what ever was on the text messages cannot be worth the risk of criminal charges being brought.
That leaves me with another question: why can’t the records be recovered from the cellphone provider? Or perhaps even the recipients of the text messages? Stay tuned.