Public Records Violations Roundup: Winter 2021
Public records violations continue to affect local government agencies across the country, costing hundreds of thousands and even millions of dollars in litigation. While it’s a hotly contested issue, the courts make it clear: agencies are required to preserve electronic communication records and need to be able to quickly retrieve and present these records upon request.
We’ve gathered a few recently filed lawsuits that highlight some of the most common public records violations agencies are risking. These cases can give you key insights to help you refine your policies to better comply with public records laws.
Public records must be presented promptly upon request
A public records request was filed following a commissioner’s sudden vote to terminate the county administrator’s contract. Because the state’s Sunshine Law prevents elected officials from communicating with each other outside of public meetings, call logs, text messages, emails and other documents were requested to search for evidence that the termination had been pre-planned.
This state’s Public Records Act doesn’t include a required turnaround time for a public records request, however, the general rule for states is between 2 and 20 days. According to their official Public Records Request Policy, respondents are required to “acknowledge requests to inspect or copy records promptly and to respond to such requests in good faith.” In this case, the respondents did not provide the requested records comprehensively or promptly, resulting in a lawsuit indicating that the involved officials refused to hand over all the requested documents.
One of the officials listed in the lawsuit argues that he fully complied with the request as quickly as possible but was delayed by his cell phone provider, which provided incomplete phone logs of text messages.
“Until I’m satisfied that I’ve received all the records, I’m not letting it go, that’s for sure. They’re going to have to testify under oath about where these records are,” says the paralegal who made the original request and filed the lawsuit.
To ensure a thorough and timely response to public records requests and avoid potential legal action, we recommend consulting your state’s official public records requirements.
Incomplete public records response is costly
What first began as a right-to-know request filed by a newspaper in 2014, resulted in a ruling this year by a state’s Supreme Court that required a government agency to pay $120,000 in legal fees and penalties.
The state’s Office of Open Records determined the initial request fell under right-to-know law, but the agency failed to release all the requested information. The newspaper that filed the request was forced to go to court to have the order enforced to retrieve all the documents.
The lengthy court process resulted in more than $215,000 in legal fees for the newspaper, which later sued the agency for repayment.
Both the state’s lower and supreme court ruled that the agency acted in bad faith in responding to the record request. The agency must pay a little more than half of the legal fees as well as a $1,500 civil penalty.
Text messages must be captured and archived
High-level law enforcement officials are being charged for downloading — and allowing up to 18 police employees to download — an app that deletes text messages on their state-issued cell phones. The app fully encrypts messages and bypasses the state’s servers. Because the messages never go through a state-managed server, deleted messages are permanently removed and can’t be retrieved.
This is a direct violation of the state’s freedom of information act.
Some lawmakers point out that officers may need to use encrypted text messages during sensitive investigations. However, there’s bipartisan agreement in the state’s senate that policies need to catch up with the technology.
Encrypted messages are fine “as long as those messages are subject to retention and disclosure,” says one lawmaker. But it’s important that “someone can't go around FOIA because an app allows them to."
How to improve public records management
Public records violations can be costly, resource-consuming events when records aren’t properly captured or take too long to retrieve. However, agencies can strengthen their records management process by:
- Updating their communication policy to account for new communication habits and collaboration technology
- Updating their archiving solution to capture all applicable, government-related electronic records, including text messages, communication through internal collaboration tools (Microsoft Teams, Slack, etc.), encrypted apps like WhatsApp, and social media
- Understanding recordkeeping laws, including the state’s record definitions and retention schedule and how much time they’ve got to respond to a public records request
- Training staff on appropriate business communications with documented usage policies
Updating the communication policy to new technologies or habits is especially important. While emails sent or received on government email accounts are well understood and established, agencies now need to plan for flexibility, including:
- Employees using social media and encrypted apps for government-related business on a personal device (BYOD)
- Work-related texts sent or received on personal devices (BYOD)
- More employees working remotely
As communication habits continue to evolve with emerging technologies, it’s not efficient or effective for agencies to always play catch-up with their policies. Government agencies need to better position themselves to meet information governance objectives in the digital age. With the right blend of archiving technology and internal policies, governments can reduce the risk of fines and legal issues using a modern approach to records management.
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