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New technology stops officials from hiding messages

Emerging technology captures the text messages of public officials and stores them in a searchable format on a server.

The capability has the potential to give the public faster and easier access to electronic communications that so far has been often costly to obtain.

It was a scandalous public records nightmare in Orange County, Florida, that prompted a move to the technology. Four county commissioners and the then-mayor were texting lobbyists during a public meeting in 2012 and quickly deleted them. A state attorney fined the commissioners and the mayor for their actions. The officials claimed they did not know the texts were a public record.

Orange County then became the first government entity in the U.S. to purchase a text message archiving system that could revolutionize how public records advocates access the texts of their officials.

MobileGuard, a New York-based operation last week announced that the text retention system it sold to Orange County for $97,000 in 2013 is now available to every municipality in the U.S.

The move has the potential to drop what have been in some cases five-figure costs for records-seekers to obtain texts from their local leaders, as well as dramatically lessen the waiting time.

As soon as Orange County signed on to a text archiving service, county executives began fielding inquiries from colleagues around the United States. Governments wanted to know if it worked and “why we were doing it,” said Peter Miller, chief security officer for Orange County.

Before getting the software installed on the county’s 2,000 cellphones, a request for texts meant taking screen shots of each message. Now, any text sent from a county-owned phone is sent to a searchable server, which can be accessed in response to a public records request.

“It takes down the cost of retrieving these messages, and the citizens requesting are getting a lot more information a lot quicker and cheaper than before,” Miller said.

Oregon-based Smarsh has been selling software to retain communications for two years, branching out from focusing on the financial services industry. Smarsh has sold its software to 151 governments, including Maricopa County, Arizona, and the City of Tallahassee, Florida.

MobileGuard has 33 government clients, 32 state and local and one federal.

The ability to catalog texts, though, might have limited appeal to a public body that passes the costs of searching to the public anyway.

“This potentially does a whole lot for the requester,” said Joe Larsen, a public records attorney in Houston. “But while it would save money on that end, there is not much incentive for a government to buy it, as it passes charges to search texts along anyway. It’s no skin off their nose.”

Governments will often charge large sums in response to open records requests for texts, citing the laborious process of collection. Cost for doing that varies by state, as does retention policy.

Also at play is the use of personal phones by public officials to conduct public business.

“The question I would have is what the policy of the local government using this is,” said Daniel Bevarly, interim executive director of the National Freedom of Information Coalition. “I’d want to know if public officials are restricted from using personal phones for business. And just as we've seen public officials use private email for business, the real challenge is the policy and the penalty for violating it.”

The newness of the technology poses other questions, added Jonathan Anderson, chair of the freedom of information committee of the Society for Professional Journalists.  Will it alter the behavior of public officials who know that their communications will be monitored and readily available to the public?

“Before, the texts were presumably public record,” he said. “This doesn’t resolve all of the issues, because you can’t totally prevent secret communications. If someone wants to use their personal cell to communicate with someone off the radar, you can’t do much about that.”

“But all in all, it’s a positive step forward to get the issue of how the public can access government texts that are subject to public records into public conversation,” Anderson said.