Retention policy needed for public agencies’ text messages

In June 2016, NJFOG wrote to the State’s Records Management Services Bureau / Division of Revenue and Enterprise Services (RMS/DORES), formerly known as the Division of Archives and Records Management (DARM), to inquire if a retention policy existed for text messages, similar to that for emails, sent and received in the course of government business.

RMS/DORES replied that there were “no guidelines or best practices yet created for text messages involving government records,” but that they were “in the process of researching other state’s procedures and guidelines before issuing one for the State of New Jersey.”

NJFOG followed up with RMS/DORES earlier this month regarding the status of that effort, and received the following response:

“Unfortunately, DORES has made very little progress in getting a handle on the retention of text messages. Because of the complexity of text messages it is a challenge to apply one broadband retention policy. Another issue that arises is that the agency does not ow[n] the servers on which the text messages reside and therefore cannot control the deletion process. We do continue [to] research this topic a[nd] hope[] to create an effective policy.”

Though, as RMS point outs, there are challenges posed by the issuance of a retention policy for text messages – e.g., the use of private servers – we note that the same challenges exist with regard to the use of private email accounts for government business. The latter situation is common in New Jersey, yet a retention policy has been promulgated by DARM/RMS-DORES with regard to email communications. Almost fifteen years ago, the State issued Circular Letter 03-10-ST entitled “Managing Electronic Mail: Guidelines and Best Practices.” The Letter’s introduction states:

“Electronic mail systems, commonly called e-mail, have become the communications method of choice for many public officials and public employees in New Jersey. E-mail messages are often used as communication substitutes for the telephone as well as to transmit substantive information or records previously committed to paper and transmitted by more traditional methods. This combination of communication and record creation and record keeping has created ambiguities on the status of e-mail messages as government and/or public records.

The management of e-mail systems touches on nearly all functions on which a government agency is dependent for recordkeeping: privacy, administration, vital records management, administrative security, auditing, access, and archives. The need to manage e-mail messages and systems properly, then, is the same as for other recordkeeping systems to ensure compliance with New Jersey laws concerning the creation of, retention of, and access to public records.”

Today’s text messages are the equivalent of the e-mails sent and received fifteen years ago. The State of New Jersey, for the sake of consistency, should adopt guidelines and best practices that address this newer form of communication.

A January 5, 2015 article in Government Executive entitled “Yes, That Text Message is a Public Record” states that “[s]ending messages between phones is an increasingly important way for public employees and leaders to communicate official business.” The article quotes Bonney Lake, a Washington official, as saying “[Text messaging is] a great way for our patrol officers to update their patrol sergeant. It’s quick simple messaging. Everyone loves it. They don’t send emails anymore. They send texts.” The official goes on criticize public agencies who are “dragging their feet” because of the tech challenge that effectively archiving text messages raises. “I think that’s really scary to put those blinders on. If you aren’t retaining [text messages], you’re doing a disservice to your citizens by not protecting those records.”

There is no reason to believe that text messaging is not supplanting e-mail communications in New Jersey’s police agencies (and other agencies) as well. Accordingly, NJFOG feels the State should be proactive and require public agencies to either a) disallow their employees or officials from using text messaging to distribute official communications or b) require that text messages containing official business be reliably archived.

New Jersey appears to be among the agencies the article criticizes for being slow to address the issue “because of the tech challenge.” Services exist to help public agencies effectively archive text messages, however. One such service is Smarsh, which the article says is “cost effective.” According to the article, “Smarsh helps public-sector organizations with their records retention challenges, whether it’s archiving social media posts and instant messaging or preserving more traditional communication methods like email.”

Since the technology exists to manage retention of text messages as well as other electronic communications, NJFOG would like the State to embrace that technology and move forward with the issuance of formal guidelines for text message retention. A benefit of the State’s promulgation of such guidelines is that it may prompt public agencies to review their electronic communication rules, for both email and texts, and establish strict internal guidelines that allow for better retention of both forms of communication.