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“Ditch those disappearing message apps” – Open Government Office Advises D.C.

Fritz Mulhauser | March 19, 2022 | Last modified: March 26, 2022

New legal advice to the mayor says employees’ and officials’ electronic messages in any form are government records under D.C. law but evade storage and retrieval especially when sent via modern software on private devices, so the mayor should strongly discourage personal device use, require message copies be kept in rare situations where use is essential, and prohibit disappearing message apps such as WhatsApp.

The recommendations are by the District’s top official for transparency, director of the Office of Open Government Niquelle Allen, in a new 7,000 word opinion issued March 16 during Sunshine Week.  

The opinion concludes the law is clear that “text messages, to the extent that their contents are government business, are public records.” This premise is increasingly adopted elsewhere but has not been generally recognized and acted on in the District of Columbia government (In public record retention or FOIA law, OCTO guidance, FOIA appeals or in guidance to employees).

The rest of the suggestions flow from that, since public records must by law be retained and made available for public access.

The guidance adds pressure for executive action in the wake of accounts of wide use. Court papers and the press have detailed officials’ use within the District government, and have sparked even a request from House Republicans that the D.C. Inspector General investigate the mayor’s messaging following her acknowledgement in litigation that she used WhatsApp during the January 6, 2021 insurrection.

The Washington Post editors urged a ban (on private messages absent backup) a few weeks ago, since they didn’t believe the D.C. mayor’s assurance that “the law is being followed with regard to all communications” and got only “oblique” answers to questions on details of how messages are preserved.

The complexities (such as searches of private devices to find records or when encrypted) call for detailed analysis and thoughtful legislation and regulations. For example, a Kentucky court a few weeks ago gave up on access to texts. Calling out the state for not giving official email accounts to all who did government business, the court denied access to private devices some officials used as the only way to connect for their public duties. Said the court (in an opinion now on appeal) “it is unfathomable for the government to force state employees, officials, and volunteers to hand over their privately-owned devices for inspection of possible records” and “an unreasonable burden on state agencies in producing records and would grossly encroach on the private lives of state employees, officials and volunteers.”  (The new D.C. opinion recommends requiring employees to do any search the law or litigation may require and report by sworn affidavit.)

The D.C. Council has passed a quick emergency bill on the subject, effective for only 90 days, so more consideration is needed for any longer-term law.  

As the Post editors put it, a “technological reckoning” has been overdue. The 90-day law catches up with the real world at least by explaining that “electronic mail” includes texts and that the rule against “destroying” government records includes using any app feature that automatically erases content. Access will remain an issue, especially when messages are encrypted and neither user nor provider can retrieve, recalling the debate over whether smartphone designers should build in special “back door” access for urgent law enforcement demands.

The Open Government Coalition welcomes steps toward safeguarding all kinds of public records for all purposes including litigation, history, and public record request. The Coalition wrote the mayor in 2019 asking for action and published a review of laws and court decisions nationwide showing other states’ progress updating treatment of texts as records as they supplanted email.

If you have suggestions on how D.C. government can safeguard records of official business in the new technological environment, let the Open Government Coalition know at