Let’s Talk Texting

You all have probably seen headlines from around the state of our brothers and sisters in the struggle felled by the perceived evils of a candid text message, email or anything else that was written down, preserved, and ultimately disclosed.  If you work for or with a governmental entity, it could happen to you.

There are a couple of factors at play here.  First, the Public Information Act.  Inquiring minds are out there and they want your texts because they know you’ve caught on to the fact that you shouldn’t say the bad stuff in email.  You have caught on to that, right?

So, texts.  Subject to the Public Information Act.  Even the ones on your personal device.  Consider the definition of “public information” from Texas Government Code §552.002 (paraphrased):  information that is written, produced, collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business either by or for a governmental body, including by an employee or officer acting in their official capacity and containing information that pertains to official business of the governmental body.

Some good news: the emails, texts, letters, notes and other documents you create and maintain that are not related to school business are also not subject to the Public Information Act (“PIA”).  That includes everything from the grocery list you emailed your spouse on your school email, to the happy birthday text you sent to your principal on your personal cellphone.  Since the contents are not related to school business, the documents themselves are not subject to release under the PIA.  Everything related to school business is.

The next issue is document retention.  What if a request comes in for emails that rolled off your school email after 90 days?  Or a text you deleted yourself?  Or notes you threw away after the last committee meeting?  Don’t panic.  For one thing, either you or your IT department can probably still retrieve any electronic information or data.  For another, there are primarily three special circumstances in which it would be a big deal to have irretrievably deleted or otherwise destroyed your notes or the type of routine communication generally found in texts and emails.  One, when the school is in the middle of a lawsuit and you have deleted or destroyed information that relates to the subject of the suit while it is ongoing.  That is a big problem and it can have a significant negative impact on the school’s position in litigation.  Two, when the information is responsive to a PIA request and you delete or destroy the information after the request is received.  There are criminal penalties associated with that.  The third is when the information could be considered the “education record” of a student under FERPA and there is some special circumstance in play such as a pending parent request for records, a hearing, or the student receives special education services.

Before you rush out and delete all your e-communications and trash all your personal notes, take some time to familiarize yourself with your CPC (Legal) and (Local) policy, administrative regulations or handbook provisions, and get the advice of legal counsel if you have any questions.  For more information on school records retention, check out the newly updated schedule SD on the Texas State Library and Archives website: https://www.tsl.texas.gov/slrm/recordspubs/localretention.html#SD