Legal memo: Text messages are public records in Alaska

JUNEAU — A legal opinion requested by an Anchorage lawmaker says text messages are public records under state law — but the Parnell administration sees things differently.

 

Legislative attorney Dan Wayne, in a memo to Sen. Hollis French, said texts are subject to disclosure when they meet the definition of public records under the law, though they, like emails or other documents, could be withheld from public review for a range of exemptions. The memo references, among other things, a 2008 attorney general’s opinion, that says state business records generated on a personal cellphone or personal digital assistants — like a BlackBerry — are public records unless the law permits them to be withheld.

The memo is dated Aug. 27 but was released by French Thursday. It comes about a month after an Anchorage Daily News story raised questions about the use of text messaging by members of Gov. Sean Parnell’s administration.

French, D-Anchorage, said in a news release that this is about “having a transparent and open government.”

“It is the right of the public to be able to see how and why their government officials are making the decisions that they are,” he said. “It’s a form of accountability that I think is vital to making sure the government acts in the best interest of Alaskans.”

French said in an interview that his intent in seeking the opinion was to see if texts, in fact, are public records. He said he’s not sure if there’s a problem but said the governor’s position is worth assessing.

Sharon Leighow, a Parnell spokeswoman, said text messages are “transitory and are not saved.” She said the administration does not consider them to be public records, and has consulted with the Department of Law on this.

“We look forward to legislative records being as open and transparent as the Executive branch currently is,” Leighow said in an email.

The Legislature sets its own policy on records. Legislative records generally are considered confidential unless released by a lawmaker’s office, said Pam Varni, executive director of the Legislative Affairs Agency. She couldn’t immediately say whether text messages fell under that same umbrella.

For state agencies, the state general administrative records’ retention schedule says email, attachments, texts and instant messages that are not records, as defined under the law, may be destroyed immediately. It says non-record communications include those of a “transitory nature, primarily generated for informal transmission of information, not the perpetuation or formalization of knowledge.”

The document further defines transitory messages as those that don’t set policy, guidelines or procedures, and emails, voice messages and texts “with short-lived or no administrative value.”

But not all text messages are transitory, State Archivist Dean Dawson said; the content counts, he said, and could require that some messages be saved for up to three years, or perhaps longer.

“It’s understood by most reasonable people that 95-plus percent of text messages and instant messages are pure junk, but there’s a certain portion that would constitute record material,” he said in an interview.

Employees manage their own information, he said.

A legal case that legislative attorney Wayne notes could have bearing on this is pending before the Alaska Supreme Court. It was brought by activist Andree McLeod over the use of private email accounts by then-Gov. Sarah Palin. The case also raised the question over whether executive branch officials have what he called unfettered discretion regarding which records to preserve.

McLeod’s attorney, Don Mitchell, said the public records law hasn’t been updated since the 1990s, and a lot has changed, in terms of technology, since then.

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