Are text messages between public officials public? It depends on the state, or maybe the judge

Are text messages between public officials on their private phones subject to disclosure under your state open-records law? It depends on what state you're in, and the answer could change, a lawyer who has researched the issue told open-government advocates in Washington, D.C., Tuesday night.

Helen Vera, a associate with the firm of Ropes & Gray, was among the presenters at a Sunshine Week event of the D.C. Open Government Coalition at the National Press Club. Just like us, Vera said, "State and local officials are texting all the time." And, she added, making new law as they go along.

Some states consider text messages "transitory" and not subject to records laws in the same way that emails are. Vera cited a court case in Colorado, in which a judge found that the Basalt Mayor Jacque Whitsitt didn't violate the law by erasing text messages between her and Town Manager Mike Scanlon. "The lawsuit targeted Whitsitt for not turning over texts that she exchanged with Scanlon, and that Scanlon provided as part of the open-records request," Scott Condon of The Aspen Times reported. "The DA determined that no criminal charges were warranted."

Vera noted new apps that can automatically delete text messages.

Vera said "the vast majority" of state laws clearly provide access to text messages, and in other states, attorneys general have issued opinions to that effect, some of them binding. But in practice, she said, laws and policies don't guarantee access. Prolonged litigation can examine retention policies and issues such as use of personal devices and the definition of "possession" in a records law. She said some states are requiring public officials to forward to the government any text messages they have regarding public business.

"It's a very sort-of-ripe issue and we expect to continue to see that this is an issue that's litigated," Vera said. She warned that new applications such as Telegram give texters the ability to have their messages automatically deleted. One, Confide, uses the slogan "Your off the record messenger."