Rarely has records management and preservation at the local, state, and federal level been so much in the news. Will Kentucky officials seize this opportunity to educate public servants about their duty to manage and retain all public records (including those on private devices or accounts unless an appellate court directs otherwise)?
In addition to the Kentucky Open Government Coalition’s recent posts about a prosecutor’s Facebook Messenger communications with a defendant allegedly soliciting nude photos in exchange for favors in the courts and the Finance and Administration’s lawsuit to recover pardon records removed by a former Bevin attorney/former solicitor general in the KYOAG/ and failed candidate for federal judgeship, here are a few examples.
• A recent FBI search warrant affidavit quoted Anaheim, California Mayor Harry Sidhu talking about how he used personal email and text messages to leak internal city information to the Angels baseball team during negotiations to sell the city-owned stadium.
“Sidhu explained that ‘nothing came from the city hall going to you… [i]t was my private emails on even my text and all that with you,’ ” the FBI affidavit states.
This, in spite of a 2017 California Supreme Court opinion holding that officials can’t hide their texts and emails about agency business from public records requests by simply having those conversations on their personal devices.
• An open records request showed that the assistant to the North Dakota attorney general asked for the deceased AG’s account to be deleted in an email to an information technology employee on Jan. 29, a day after he died from cardiac arrest.
She wrote: “We want to make sure no one has an opportunity to make an Open Record request for his emails, especially as he kept EVERYTHING.”
• A Virginia judge ruled that a council member’s social media posting was a public record after the city denied access because “the ‘Town’ did not create, control or have access to relevant social media post.”
“There was no dispute at trial that the subject matter of the post was relevant to public business and prepared by the Councilperson in her role and capacity as a town council member.”
“While the actions of elected officials, such as posting on social media on matters of public concern, can create a unique retention and production challenge for public bodies and VFOIA compliance, this Court finds that such writings are in fact covered by VFOIA.”
• A Wisconsin judge ruled that the speaker of the Wisconsin House of Representatives committed multiple violations of the state’s public records law, prompting Bill Lueders, president of the Wisconsin Freedom of Information Council, to declare:
“The judge’s ruling reaffirms Speaker Vos’ status as a transparency scofflaw. There is nothing so complicated about the responsibility of records custodians under the state’s open records law that it should require multiple judicial rebukes.
“Vos wears his contempt for the idea that he should be accountable to anyone on his sleeve. It is not a good look. The penalties that the Speaker incurred should not be passed on to taxpayers. He should pay them with his own money, since he broke the law of his own accord.”
• A Colorado appellate court ruled that “a public entity with a contractual right to access documents from a private third party, such as a developer, must disclose those records to a requester if they are used for a public purpose.”
“‘When, as here, the requested documents are so intimately related to public funds, CORA’s purpose is at its zenith,” the court wrote. “The construction contracts and payment records obviously shed light on both the propriety and reasonableness of those payments.”
• And, of course, the most spectacular (and suspicious) of these recent examples: the “inability” of the U.S. Secret Service to produce text messages from January 5 and January 6, 2021.
As a result, “the National Archives on Tuesday sought more information on ‘the potential unauthorized deletion” of agency text messages. The U.S. government’s chief record-keeper asked the Secret Service to report back to the Archives within 30 days about the deletion of any records, including describing what was purged and the circumstances of how the documentation was lost.’”
Some are doubtful.
In response to this Washington Post article, retired Deputy Assistant Director of the U.S. Secret Service Jim Helminski tweeted:
“Missing txt msg questions about the Secret Service have a larger significance. The Secret Service investigates cyber, to say data was lost is ridiculous. On its face it would appear the agency is covering for individuals and 1/6 operational failures by hiding text msgs.”
If ever there was a “teachable moment” for education and training on proper records management and preservation — a role traditionally assigned to the Kentucky Department for Libraries and Archives — it is now. Ignorance of the laws governing records management does not excuse mismanagement. And education begins at the top.