When a city councilor, school official or state worker sends a text message relating to the public’s business, it is a public record in Oregon.
That’s a potential problem. State laws and policies haven’t caught up to the technology. Most public bodies in Oregon don’t automatically retain an archive of text messages, as they do with emails or some do with social media postings. That puts elected officials and government workers in charge of retaining and releasing their own, personal records.
Imagine if a public official didn’t want the public to know what he or she was texting about a policy matter and just deleted it, rather than keeping it and making it available to the public as required by law. We aren’t aware of any such issues in Oregon. One notable example elsewhere is with former New Jersey Gov. Chris Christie and apparently deleted text messages involving the Washington Bridge scandal.
We recently requested text messages from Bend city councilors and City Manager Eric King about Councilor Nathan Boddie. It was in the wake of the announcement that many organizations, including the Democratic political action committee FuturePAC, were dropping support for his candidacy to represent Bend in the Oregon House.
Bend does not retain texts for councilors or city employees. The city also has a text messaging policy that is flawed. The city policy essentially says that because the city tells employees not to use texts for discussing policy matters the city will not make any effort to retain texts and will not search them if it gets a request.
The city policy directs employees that they make their best efforts to “avoid any text messaging-based substantive discussions of the City’s work...” The policy then goes on to say: “Because this Policy requires that no text message-based public records be created — or that if they are created, that they be additionally saved to a separate public records format — the City of Bend will not retain text messages, and will not search any existing text messages in response to public records requests.”
To the city’s credit, it made every effort to fulfill our request. Bend’s Recorder Robyn Christie asked King and councilors to provide any relevant texts. Councilor Bruce Abernethy already has. There were some texts between him and Councilor Sally Russell. Abernethy was out of the country when FuturePAC announced it was pulling its support for Boddie. Russell let him know what was going on.
“Yikes! That is a huge shift in the likely outcome of H-54. What more do you know? How is this being received at home,” Abernethy wrote.
“Surprise. Dems don’t eat Dems normally,” Russell replied.
Is that critical to understanding how the Council is dealing with Boddie’s situation? No. But governments across the state deal with hundreds of policy matters across the state every day. They text about them. And state and local entities haven’t done an adequate job to ensure those records will be properly retained and made available for the public.