Public Record Laws about Text Messages in all 50 States
Electronic forms of communication, including texting, have become commonplace in government institutions. Consequently, most states have moved to include records of these electronic communications as items subject to request under local Sunshine laws.
Sunshine laws are, according to Investopedia, “regulations requiring transparency and disclosure in government or business.” First instated under the Government in the Sunshine Act in 1976, Sunshine laws make government records — including meeting notes, video or audio recordings and, depending on the state, text message data — available to the public in the interest of ensuring open and ethical conduct.
In this blog post, we’ll look at public record laws concerning text messaging on a state-by-state basis to help you stay compliant with any relevant regulations or legislation.
Note: All information has been sourced from the Reporters Committee for Freedom of the Press.
The Alabama Public Records Law provides access to “public writings,” which includes electronic records. Though it does not directly reference text or instant messages, there is no reason to suppose that they should be treated differently than any other form of electronic communication subject to the Public Records Law, specifically email.
The Alaska Public Records Act’s definitions of public records encompasses electronic records, though it does not refer to them specifically as such; instead, it simply includes all items “regardless of format or physical characteristics.” To that end, the Alaska Public Records Act does not specifically address text or SMS messages, however, there is no evident argument that would exempt texting from disclosure under the law.
The Arizona Public Records Law applies to all documents in the custody of public officers, who are required “to make and maintain records reasonably necessary to provide knowledge of all activities they undertake in the furtherance of their duties.” Though the law does not include specific language concerning electronic records, including text and SMS messages, there is no evident argument that would exempt them from disclosure.
Arkansas considers all records “required by law to be kept or otherwise kept and that constitute a record of performance or lack of performance of official functions” as public records and requires them to be made available upon request.
The Arkansas Freedom of Information Act (FOIA) includes all “electronic or computer-based information” within its definition of public record. Therefore, even though the Arkansas FOIA does not specifically mention text or SMS messages, they should be treated the same as all other forms of public record.
Though they are not specifically mentioned in the California Public Records Act’s definitions of public records or writings, text messages relating to official agency business are considered “writings.” Additionally, any text messages that contain information relating to the public’s business and are in the custody of a public agency, public official or individual public employee are, by definition, public record.
The Colorado Open Records Act states that all records maintained in electronic or digital format — including text and SMS messages — are considered public records.
The Connecticut FOIA applies to all public records — that is:
“… any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract.”
To that end, all electronic communications that fall under this categorization, including email and text/SMS messages, are subject to the Connecticut FOIA.
Additionally, the Connecticut FOIA states that government agencies must provide the requested information on “paper, disk, tape or any other electronic storage device or medium requested by the person.”
The Delaware FOIA does not specifically refer to electronic records, however, it does state that “public records” include all information “regardless of the physical form or characteristic by which such information is stored, recorded or reproduced.” Therefore, it is safe to assume that text and SMS messages should be treated no differently than any other form of public record.
Section 119.011(12) of the Florida Statutes — essentially, Florida’s version of the Public Records Law — defines “public records” as:
“… all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.”
Based on this information, text and SMS messages should reasonably be treated as public records.
According to the Georgia Open Records Act, public record includes “computer-based or generated information,” “data” and “data fields.” It also states that text messages and other electronic messages are not exempt from its disclosure requirements.
That said, the Act does explicitly state that:
“… [r]equests to inspect or copy electronic messages, whether in the form of e-mail, text message, or other format, should contain information about the messages that is reasonably calculated to allow the recipient of the request to locate the messages sought.”
Such information includes the name, title, or office of the specific person whose messages are sought and, where possible, the specific database in which those messages are located.
Section 92F-11 of the Uniform Information Practices Act (UIPA) — Hawaii’s revised open records law — states that “All government records are open to public inspection unless access is restricted or closed by law.” Section 92F-3 defines “government records” as any “information maintained by an agency in written, auditory, visual, electronic, or other physical form.”
Based on this information, even though they are not specifically identified, text and SMS messages are considered government records under the UIPA and should be treated as such.
Code § 74-101(13) of the Idaho Public Records Act defines “public record” as:
“… any writing containing information relating to the conduct or administration of the public’s business prepared, owned, used or retained by any state agency, independent public body corporate and political or local agency regardless of physical form or characteristics.”
Code § 74-102 provides that “every person has the right to examine and take a copy of any public record of this state. Code § 74-102(15) expands upon this, stating that:
“Nothing contained herein shall prevent a public agency or independent public body corporate and politic from providing a copy of a public record in electronic form if the record is available in electronic form and if the person specifically requests an electronic copy.”
Therefore, although it does not specifically reference text or SMS messages, we can reasonably presume that the Idaho Public Records Act requires agencies to treat them the same as other forms of public record.
The Illinois FOIA considers text, SMS and instant messages to be public record, provided they have been prepared by or for, or have been used or are being used by, received by, or are in the possession of, or under the control of any public body.
The Indiana Access to Public Records Act defines a public record as:
“… any writing, paper, report, study, map, photograph, book, card, tape recording, or other material that is created, received, retained, maintained, or filed by or with a public agency.”
Although the Act does not explicitly reference texting, this broad definition encompasses electronic records, including text and SMS messages.
The Iowa Open Records Act does not specify whether text and SMS messages are considered public records, however, it does state that the term “public records” includes:
“… all records, documents, tape, or other information stored or preserved in any medium, of or belonging to this state or any county, city, township, school corporation, political subdivision, nonprofit corporation other than a fair.”
Emphasis here on “stored or preserved in any medium” — by this logic, text and SMS messages constitute as public records and should be treated as such.
Under the Kansas Open Records Act (KORA), all records — be they paper, electronic or otherwise — made, maintained or kept by or in possession of any public agency, officer or employee of a public agency are considered public records. To that end, text and SMS messages are subject to KORA’s public access and retention requirements.
The Kentucky Open Records Act’s definition of “public records” includes virtually every form of record — paper, electronic, or otherwise — owned or controlled by a public agency. It also stipulates that all forms of public record, regardless of format, be treated the same. Therefore, although the Act does not include any specific language concerning texting, text and SMS messages are subject to it.
The Louisiana Public Records Act’s definition of “public records” is virtually all inclusive — it even states that “information contained in electronic data processing equipment” is considered public record. Based on that information, text and SMS messages are subject to the Act’s disclosure requirements.
The Maine Freedom of Access Act covers all types of records, including text and SMS messages.
The Maryland Public Information Act (PIA) defines a “public record” as:
“… the original or any copy of any documentary material that (i) is made by the unit or instrumentality of the State or of a political subdivision or received by the unit or instrumentality in connection with the transaction of public business.”
This rather broad definition extends to all electronic records, including text and SMS messages. The PIA also states that custodians are obliged to “permit a person or governmental unit to inspect any public record at any reasonable time.”
Massachusetts’ Public Records Law covers “all documentary materials or data created or received by any officer or employee of any governmental unit, regardless of physical form or characteristics.” To that end, text, SMS and other forms of electronic messages constitute as public record.
Text, SMS and instant messages are likely subject to Michigan’s FOIA, based on the precedent set by the Wayne County Circuit Court, which issued an order in an FOIA request requiring a third-party service provider to furnish the text messages that led to the eventual resignation and conviction of Detroit Mayor Kwame Kilpatrick.
Rather than deal with “records,” Minnesota Government Data Practices Act (MGDPA) covers “government data,” which it defines as data “collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media, or conditions of use.”
It also states that “Photographic, photostatic, microphotographic, and microfilmed shall be considered as accessible for convenient use regardless of the size of such records.” Based on these requirements, text and SMS messages must be made readily available to the public only if they contain government data.
The Mississippi Public Records Act covers any records that are “prepared, possessed or retained for use in the conduct, transaction or performance of any business, transaction, work, duty or function of any public body”; this includes text and SMS messages.
Missouri’s Sunshine Law extends to any record retained by or of any public governmental body, regardless of its nature or source. As far as electronic records are concerned, the Sunshine Law states that:
“A public governmental body may not enter into a contract for the creation or maintenance of a public records database if that contract impairs the ability of the public to inspect or copy the public records of that agency, including public records that are online or stored in an electronic record-keeping system used by the agency.”
In simpler terms, agencies are required to store all data — including text and SMS message records — in such a way that it is easily searchable by and accessible to the public.
Montana’s Public Records Act defines a “public record” as:
“… public information that is fixed in any medium and is retrievable in usable form for future reference; and designated for retention by the state records committee, judicial branch, legislative branch, or local government records committee.”
If a record is not generated by a public body and does not relate to the functions and duties of that body, it is exempt from the Act’s requirements. As an added note, the Act requires agencies to treat electronic information, including text and SMS messages, the same as it would printed information.
The Nebraska Public Records Law defines “public records” as any records belonging to the state or its subdivisions. Additionally, the Nebraska Revised Statute 84-712.01(1) states that:
“Except when any other statute expressly provides that particular information or records shall not be made public, public records shall include all records and documents, regardless of physical form, of or belonging to this state.”
Again, emphasis here on “regardless of physical form” — though it does not explicitly mention texting, any text, SMS or instant messages to which this description applies are subject to the Public Records Law.
The Nevada Public Records Act (NPRA) applies to “all public books and public records of a government entity.” Though the NPRA does not provide a definition for “public books” and “public records,” a document is generally considered to be a public book or public record if:
- The agency required the creation or submission and maintenance of the record
- The record was used to conduct or facilitate agency business
- The record was distributed to other offices or agencies for formal approval or reporting purposes
- The record documents official business action
NPRA requires that all public books and public records be made readily available — that is, easily retrievable by a legal custodian — in a readily available medium. NAC Chapter 239.861 clarifies that “readily available medium” refers to “any format in which a public record exists with the agency at the time that a person requests to inspect, copy or receive a copy of that public record.” To that end, all electronic records, including text and SMS messages, are subject to NPRA.
29. New Hampshire
New Hampshire’s “right to know” law, known as “Access to Government Records and Meetings,” applies to “governmental records.” This includes “any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function.”
According to the Statute, governmental records entail any written communication or other information, whether in paper, electronic, or other physical form. Therefore, text and SMS messages are subject to the Statute’s disclosure requirements unless they are exempted by the Statute or some other law.
30. New Jersey
New Jersey’s Open Public Records Act (OPRA) defines “government records” as:
“… any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof.”
Under OPRA, all government records are subject to access. Although OPRA does not specifically address text messages as public records, it is in an agency’s best interest to treat any text or SMS messages the same as it would any other government records.
31. New Mexico
The New Mexico Public Records Act defines “public records” as such:
“All documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained.”
This broad definition entails email and, presumably, text and SMS messages, so these should be treated the same as physical records.
32. New York
New York’s Freedom of Information Law (FOIL) covers “any information kept, held, filed, produced, or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever.” Though FOIL does not include any statutes that specifically address texting or instant messaging, “any physical form whatsoever” should be interpreted to include text, SMS and instant messages.
33. North Carolina
North Carolina’s Public Records Law covers “all records made or received pursuant to law or ordinance in connection with the transaction of public business.” It further stipulates that “public records” include:
“…documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics.”
Based on this definition, text, SMS and instant messages are subject to disclosure under the law.
34. North Dakota
The North Dakota Century Code (NDCC) — which includes the state’s Open Records Statute — defines records as:
“… recorded information of any kind, regardless of the physical form or characteristic by which the information is stored, recorded, or reproduced, which is in the possession or custody of a public entity or its agent and which has been received or prepared for use in connection with public business or contains information relating to public business.”
Text, SMS and instant messages fall under this broad categorization and must, therefore, be reproduced upon request.
Like many of the other laws included in this list, Ohio’s Open Records Law does not explicitly refer to texting. It does, however, state that a “record” is “any document, device, or item, regardless of physical form or characteristic, including an electronic record,” and further clarifies that an “electronic record” refers to any record “created, generated, sent, communicated, received, or stored by electronic means.”
By this logic, text and SMS messages are, indeed, considered records, and those that are kept by any public office are subject to disclosure.
The Oklahoma Open Records Act requires all documents, regardless of physical form, “created by, received, under the authority of, or coming into the custody, control or possession of public officials, public bodies, or their representatives in connection with the transaction of public business, the expenditure of public funds or the administering of public property,” be made available for public inspections. This includes “data files created by or used with computer software, computer tape, disk and record” — in other words, text and SMS messages.
Oregon Revised Statute (ORS), which includes Oregon’s Public Records Law, defines a public record as “any writing containing information relating to the public’s business prepared, owned, used or maintained by a public body regardless of physical form or characteristics.”
Again, emphasis here on regardless of physical form or characteristics. Based on this information, we can safely assume that text and SMS messages that meet this description would be treated the same as any other public record and would be subject to the same disclosure provisions and exemption claims.
Pennsylvania’s Right to Know Law applies to multiple types of records, including public records, which it defines as:
“A record, including a financial record, of a Commonwealth or local agency that: (1) is not exempt under section 708; (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by privilege.”
Under this Law, text messages and instant messages are presumptively accessible unless the governmental agency in question proves some exemption from disclosure applies.
39. Rhode Island
Rhode Island’s Access to Public Records Act (APRA) defines public records as:
“All documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, magnetic or other tapes, electronic data processing records, computer stored data (including electronic mail messages, except specifically for any electronic mail messages of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities) or other material regardless of physical form or characteristics made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.”
Based on this broad definition, we can reasonably assume that all text and SMS messages to which this description applies fall under APRA’s purview and must therefore be reproduced upon request.
40. South Carolina
South Carolina’s FOIA applies to all records “prepared, owned, used, used in the possession of or retained by a public body,” regardless of physical form or characteristics. As with so many other laws on this list, this is interpreted to include all forms of electronic media, including text, SMS and instant messages. Therefore, the public reserves the right to inspect, copy or receive a transmission of these records unless an agency is able to provide a lawful exemption from disclosure.
41. South Dakota
South Dakota Codified Laws state that public records “include all records and documents, regardless of physical form.” To that end, text and SMS messages pertaining to the conduct of public business are considered public record and must be disclosed “unless any other statute, ordinance, or rule expressly provides that particular information or records may not be made public.”
The Tennessee Public Records Act considers all “state, county and municipal records” public unless otherwise exempted; although not expressly stated, this includes text and SMS messages.
According to an Open Records Decision from the Texas Attorney General, virtually all of the information in a governmental body’s physical possession constitutes public information and is thus subject to the Public Information Act. Thus, to the extent that text messages relate to the official business of the governmental body, they are subject to the Act.
Utah’s Government Records Access and Management Act (GRAMA) applies to all records that are not “private,” “controlled,” “protected” or otherwise exempt from disclosure by statute. To that end, even though GRAMA does not reference them directly, any text or instant messages regarding a public matter on government hardware are presumably public unless specifically exempted.
According to the Vermont Public Records Act, a public record includes “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business.” To that end, text messages fall under the statute’s definition of a “public record.”
The Vermont Supreme Court recently clarified that even text messages “located in private accounts of state employees or officials” are considered public records if they were “produced or acquired in the course of agency business.”
The Virginia FOIA defines public records as:
“… all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.”
Based on this language, text and SMS messages fall squarely within the definition of “public record” and are therefore subject to the disclosure requirements of the Virginia FOIA.
Washington’s Public Disclosure Act applies to all “public records” — that is, any record:
“… relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”
This definition applies to electronic formats, meaning text messages are likely subject to the Act’s disclosure provisions.
48. West Virginia
The West Virginia FOIA applies to “any writing containing information relating to the conduct of the public’s business, prepared, owned and retained by a public body.” The state Supreme Court has further clarified that this provision “constitutes a liberal definition of a ‘public record’ in that it applies to any records which contains information relating to the conduct of the public’s business.”
Although the West Virginia FOIA does not specifically reference text messages, based on the information available, it’s safe to assume that any text messages containing information relevant to the public’s business would be subject to the same requirements as any other form of public record.
Wisconsin’s Open Records Law defines a “record” as:
“… any material on which written, drawn, printed, spoken, visual or electromagnetic information or electronically generated or stored data is recorded or preserved, … that has been created or is being kept by an authority.”
It also states that the term “record” applies to all materials, “regardless of physical form or characteristics.” Therefore, although the state of Wisconsin hasn’t officially addressed the issue, text, SMS and instant messages likely fall under the statute’s definition of a “record” and are subject to its requirements.
The Wyoming Public Records defines a public record as any record made by a government entity “in furtherance of its official and transaction of the public business,” unless otherwise exempted.
The Act also includes a subsection that specifically addresses records kept solely or primarily in electronic format. According this subsection, governmental agencies are required to either produce information or create a new record or document from a computer database upon request, unless doing so would prevent that agency from fulfilling its duties.
Although the Act does not contain specific language regarding text messages, they would likely fall under the jurisdiction of this subsection and should be treated the same as any other form of public record.
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