Chapter 8: Use of Text and Instant Messaging

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Section 1: Overview

This chapter will address the following:

Texts and instant messages created or received on devices should be limited to transitory information per Agency Item Number ADM05 in the Records Retention Schedule.  It is not recommended to use personal mobile devices while conducting official state business.

CAUTION: Records involved in an audit, investigation, litigation holds, or open records request must be retained in their native format (including texts and instant messaging) and cannot be destroyed until the conclusion of the action involving those records. 

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Laws, Regulations and Penalties

Open Records Request for Text and Instant Messages

Text and instant messages may not be altered or deleted if an open records request is in progress and must remain in its native format.  If an officer, employee, or contractor receives notice of a request for information, they should not delete any text messages related to the open records request.

Public Information Act

Government Code 552.234 “Title 5 Open Government; Ethics, Subtitle A. Open Government, Chapter 552. Public Information – Method of Making Written Request for Public Information” does not distinguish between personal or state-issued mobile devices but rather focuses on the nature of the communication or document. If the information was created, transmitted, received, or maintained in connection with the transaction of “official business,” defined as “any matter over which a governmental body has any authority, administrative duties, or advisory duties,” the information constitutes public information subject to disclosure under the Public Information Act.  Any public business conducted on a state-issued or personal mobile device may be considered an official record. This may include text and instant messages (i.e., Jabber, MS Teams, or other tools.)

CAUTION: The Public Information Act specifies if an officer or employee possesses information on a mobile device that has not been properly transferred or preserved on a government-designated storage location, the officer or employee must surrender the device or return the requested information to the agency to promptly fulfill an open records request.

Sec. 552.004 “Preservation of Information” of the Public Information Act was amended to say that government officials who use personal devices to conduct public business are responsible for turning over those messages to an official government account, and/or preserving them on the personal device for the duration of the retention period. Furthermore, this amendment applies existing records management laws  Government Code Chapter 441 “Title 4. Executive Branch, Subtitle D. History, Culture, and Education, Subchapter A, Texas State Library and Archives Commission” governing the preservation, destruction, or disposition to the records held by a temporary custodian. No matter where a record resides, it is subject to the administrative rules laid out in Records Retention Schedules.

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  • Temporary Custodian refers to a past or present government official who, in the transaction of official state business, creates or receives public information that they have not provided to the officer for public information of the governmental body.

Employees and contractors conducting official state business on mobile devices become “temporary custodians” of the information and are responsible for maintaining the records for the duration of the retention requirement.  While conducting official state business on a state-issued or personal device, the data is the property of the state and not the individual. Temporary custodians are responsible for turning over public information held on state-issued or privately-owned devices to the governmental body upon request.   

For more information to the Public Information Act, please contact the  General Counsel Division

Government Penal Code, Section 37.10

CAUTION: Government Penal Code, Section 37.10 “Title 8, Offenses Against Public Administration, Chapter 37. Perjury and Other Falsifications” specifies a person who intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a government record is considered tampering.

The failure to follow the regulations defined above, may expose the employee, contractor or TxDOT, to damages and attorney fees under the Public Information Act.  Additionally, officer’s, employee’s or contractor’s personal mobile devices may be confiscated if an open records request is submitted.

Texas Senate Bill 944, 86th Legislative Session

Texas Senate Bill 944, 86th Legislative Session  was created to ensure an officer, employee, or contractor of a government agency who creates or receives records on a privately-owned device or account provides that information to the government’s public information officer or officer’s agent for the purposes of protecting information and ensuring transparency.

Texas Senate Bill 944, 86th Legislative Session allows governments to obtain records stored on an officer’s, employee’s, or contractor’s private device.  The Office of the Attorney General and courts have ruled for years that records held on private devices or in private accounts of officers, employees, or contractors are still records and are subject to records management and public information laws.  Local Government Code, Title 6. Records, Subtitle C. Records Provisions Applying to More than One Type of Local Government, Chapter 202. Destruction and Alienation of Records”  Section 202.005 gives the governing body of a local government the right and proper legal channels to recover any records that reside in the possession of an individual.  Texas Senate Bill 944, 86th Legislative Session also establishes that an officer, employee, or contractor does not have a personal or property right to records created or received while acting in an official capacity.

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