Disclosure of Text Messages Under Freedom of Information Laws

Text messages are routinely used to conduct government business. As a result employers, litigants, newspapers, and public interest groups are increasingly seeking access to the contents of such communications in order to shed light on the workings of government. One of the arguments against disclosure of text messages emerging from public officials is that certain delivery platforms or technological devices should, by their very nature, be private because the official owns them, or keeps them in her pocket. Because text messaging represents a relatively new form of electronic communications, state and federal courts are considering requests for access to and disclosure of text messages pursuant to freedom of information and privacy laws.

Courts have begun exploring ways to apply open government laws to text messages. In Texas, a state judge ordered the City of Dallas to turn over e-mails and text messages sent by city officials from personal accounts and personal hand-held devices to conduct city business, and held that the e-mails and messages were subject to disclosure under the Texas Public Information Act.”20 Newspapers in Detroit, Michigan, filed a Freedom of Information Act (FOIA) lawsuit against the city seeking disclosure of text messages sent by Detroit elected officials on city-issued pagers that relate to the city’s $8.4 million settlement of two whistle-blower lawsuits brought by former Detroit police officers.21 The city has argued that disclosure of the text messages would violate the federal Stored Communications Act. A public records directive issued by the city states that all electronic communications sent on city equipment “is not considered to be personal or private.”22 Although the newspapers obtained the text messages through an anonymous source, they continue to press for the release of additional information under public records law.23 A court ruled part of the information the newspapers wanted was public, the Free Press published text messages related to the cover-up and the Mayor and Chief of Staff were charged with eight felonies.24 The newspapers are continuing to pursue additional information using the state FOIA.

New York legislators worked to revise the state’s open records law to specifically add text messages to the list of records covered.25 A new Freedom of Information Law became effective in New York on August 7, 2008, and includes provisions which reflect a recognition of advances in information technology, but does not include a provision on text messaging.26

Subject to certain exceptions, the Stored Communications Act (SCA), which is part of the Electronic Communications Privacy Act, bars “a person or entity providing an electronic communications service to the public” from knowingly divulging to any person or entity the contents of a communication while in electronic storage by that service.” The SCA distinguishes between two types of providers: “remote computing services” and “electronic communications services.”

Courts have been examining whether the disclosure of text messages sent by employees on employer-issued pagers violates the privacy rights of employees, and whether such disclosure is barred by the Stored Communications Act.27 The Ninth Circuit Court of Appeals recently held that the city employer violated the constitutional rights of an employee when the employer reviewed text messages sent and received by the employee on his employer-provided pager. The court of appeals also held that the text-messaging service provider violated the federal Stored Communications Act by giving the city transcripts of the text messages. In Quon v. Arch Wireless,28 the Ninth Circuit held that a city’s text message provider was an electronic communications service for purposes of the act because it enabled city employees to send and receive wire communications. In Quon, city employees sued their employer after they were fired for using their employer-provided mobile devices for personal communications.