[oagitm] Re: Texting policy
- From: "Anderson, Dean" <anderson.dean@xxxxxxxxxxxxx>
- To: clarouche@xxxxxxxxxxxxxxx, DeckerML@xxxxxxxxxxxxxxxxx
- Date: Tue, 20 Sep 2011 08:53:08 -0700
Did research on this a few months ago on this issue for County Counsel and
BOC. It does not appear the text messaging is subject to public records law
but will be impacted in a "discovery" environment. Based on this Polk County
has elected to follow a conservative standard operating procedure where all
text messages where office county business is discussed be routed through
our e-mail system. (this includes messages from staff saying "they will be
late for work" but not "I will meet you for coffee at Joe's") This was easy
for our supervisors that use text messaging to setup and works pretty well.
It also means they have a record of issues. They seem reasonably happy with
it and the inconvenience it has imposed on their staff appears to be low.
Below are the references found in our short review of the issue.
--
Dean R Anderson
IT Director
Polk County
*Not exactly “instant messaging from SOS” *
**
The following was taken from the SOS site. It reference instant
messaging/chat but not “text messaging”. However, it is pretty similar.
"In addition, work done on private e-mail accounts as well as personally
purchased computers and hand held devices might be considered a public
record for both access and retention/disposition. It is strongly recommended
that elected officials use a designated account for official business and
that the policy prohibits official business from being conducted by Instant
Messaging or Chat Rooms unless there is a specific mechanism in place to
capture this information. It is also important for agencies to provide
training on public records issues for elected officials, board and
commission members, and employees."
From: http://arcweb.sos.state.or.us/recmgmt/train/erm/email/emailman806.pdf
* Public Record *
* *
Not sure what the following means but seems to be that phone based text
messages are not subject to public record law.
* *
*192.005 Definitions for ORS 192.005 to 192.170.* As used in ORS 192.005 to
192.170, unless the context requires otherwise:
(5) “Public record” includes, but is not limited to, a document, book,
paper, photograph, file, sound recording or machine readable electronic
record, regardless of physical form or characteristics, made, received,
filed or recorded in pursuance of law or in connection with the transaction
of public business, whether or not confidential or restricted in use.
“Public record” does not include:
(f) Messages on voice mail or on other telephone message storage and
retrieval systems.
*E-Discovery *
There are many examples of where e-discovery can include text messaging. I
took the following from an article I found and included the site.
“Since 2006, the Federal Rules of Civil Procedure require producing not just
paper but all electronic documents and data for trial. Defendants and their
counsel must carry out this duty to preserve and provide electronically
stored information (ESI), and a court can inflict sanctions for failure to
comply.
Discovery can be long and costly because a party may make inquiries about
any area that is relevant to a dispute or that may lead to relevant
admissible evidence. Incomplete compliance with e-discovery requests is a
particular danger, because it is often necessary to search not only current
email and document files but also backup disks, system servers, off-line or
off-site data storage, programs and utilities, personal digital assistants,
notebook and laptop computers, *and even cell phones with text messaging* or
home computers.
Defendants and their counsel must carry out their duty to preserve and
provide ESI from all these sources, and most experts agree that more than
90% of the data generated in a given organization constitutes ESI. The sheer
physical volume of this data can be huge. One gigabyte of ESI can equal up
to 75,000 hard copy pages, and many lawsuits require e-discovery production
of up to one terabyte (1,000 gigabytes) of material, or 500 million pages of
paper - approximately equal to the height of 58 Empire State Buildings.”
http://www.structuremag.org/article.aspx?articleID=893
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