5 Myths About Public Recordkeeping

April 23, 2020by Smarsh

Government organizations have a duty to be transparent in how they conduct their business. However, despite federal, state and local public records laws, missteps still make headlines that result in hefty lawsuits, expensive fines and incalculable reputational damage.

Many public agencies struggle with whether — or how — to retain SMS or MMS text messages in the era of smartphones and instantaneous responses. The lack of understanding government agencies have about archiving text messages, a wariness of the risks that may come along with allowing or turning a blind eye to presumably private communications, and concern about incurring additional costs paralyzes some organizations.

Here are the top five recordkeeping myths every public agency should know—and avoid.

Myth #1: Text messages are not part of the public record

Fact: All electronic communications are part of the public record.

When the content of the message is related to government business, the text message is a part of the public record and needs to be captured and archived.

Nearly all states have laws that say electronic communications—which includes text messages—need to be retained. However, some states have made the move to explicitly say that text messages must be captured.

Now that we know that texts relating to government business must be archived, this leads to our next myth…

Myth #2: Phone companies save all text messages

Fact: It depends on the carrier. Few carriers keep texts longer than 30 days.

It’s not a priority for phone companies to retain text message content. They don’t have any legal responsibility to keep or retrieve their customers’ text message content.

When Fred Stavins, City Attorney for the City of Champaign, Illinois, wanted to know if it’s possible to recover deleted texts, his team found this:

Verizon: Customers can only retrieve text message content that was sent or received within five days of the request
AT&T: No records are kept of customers’ text messages
Sprint: No message content is kept. Customers may access message data, but that would only include the time, date and the phone numbers involved with the text
T-Mobile: No message content is kept. Customers may access message data, but that would only include the time, date and the phone numbers involved with the text

Because phone carriers don’t store their customers’ text messages, it’s important for public agencies to work with a technology vendor like Smarsh to capture and retain text messages. Smarsh simplifies text message archival by partnering with carriers like Verizon and AT&T. These partnerships allow Smarsh to seamlessly capture and retain text message content directly from the carriers.

Myth #3: Communication records only need to be stored for a few years

Fact: The retention schedule of communication records varies by state.

Most states’ laws require business-related communication records to be retained for three to seven years before they can be destroyed. In some cases, records will need to be kept indefinitely.

However, there are contextual nuances. A text message coordinating when to leave for lunch between two friends who work for the same agency doesn’t need to be retained. However, a text message proposing a lunch meeting to discuss official government business between the same two people does need to be captured and retained.

Myth #4: Banning work texts instead of capturing them makes everything simpler.

Fact: Banning work texts can open agencies to recordkeeping violations.

Texting has become a very natural channel for people to communicate—both personally and on the job. While there can be an organization-wide policy advising against the use of texting, it only takes one errant text to put the agency at risk.

Instead of trying to prevent text messaging at work, public agencies minimize risk and ensure compliance with recordkeeping rules if they have the tools to capture and retain all text messages.

Myth #5: It’s too complicated to capture business texts on personal devices

Fact: Text capture applications can work with a bring-your-own-device (BYOD) program.

An agency’s ability to capture text messages doesn’t require all employees to use government-issued devices or use the same carrier. Technology vendors like Smarsh can help agencies capture text content without invading employees’ privacy or disrupting their personal accounts on the same device.

Know the facts about public records management

Government agencies can face heavy penalties including fines and lawsuits for deleting or tampering with archived records, or not responding to public records requests within the allotted time frame.

Unfortunately, many government agencies don’t have a solution in place for the retention and oversight of text messages, which causes problems and poses significant risk when facing an open records request, an investigation, an e-discovery event or litigation.

With the ever-increasing volume of business-related texts being sent by employees at all levels, it’s important for governments to find the right public records management software.

Learn more about how your agency can mitigate potential legal, financial or reputational risks, and respond more quickly to public records requests with Smarsh.

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Smarsh® is the recognized global leader in electronic communications archiving solutions for regulated organizations. Smarsh provides innovative capture, archiving, e-discovery, and supervision solutions across the industry’s widest breadth of communication channels.

Scalable for organizations of all sizes, the Smarsh platform provides customers with compliance built on confidence. It enables them to strategically future-proof as new communication channels are adopted, and to realize more insight and value from the data in their archive. Customers strengthen their compliance and e-discovery initiatives and benefit from the productive use of email, social media, mobile/text messaging, instant messaging and collaboration, web, and voice channels.

Smarsh serves a global client base that spans the top banks in North America and Europe, along with leading brokerage firms, insurers, and registered investment advisors. Smarsh also enables state and local government agencies to meet their public records and e-discovery requirements. For more information, visit www.smarsh.com.

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