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San Francisco Legislators Dodging Public Records Requests With Self-Destructing Text Messages

Published: March 17, 2016
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Source: Techdirt

You can call it irony. Or bullshit. But what you can't call it is good government. Cory Weinberg of The Information reports San Francisco legislators [warning: paywalled link] are using one of those infamous tools o' terrorism -- messaging service Telegram -- to dodge open records requests. [Link to a non-paywalled story covering the same thing]

In an interview, a San Francisco government staff member said they were encouraged to use the app by colleagues in City Hall who described it as a way to skirt the city’s public records laws. “That is exactly what it’s being used for,” the staff member said. “It’s caught on.”

April Veneracion, a top aide to Supervisor Jane Kim and a Telegram user, said one reason officials use the app is because it “self destructs.” She also praised the app’s chat room feature that “allows us to be in touch with each other almost instantaneously.”
Yes, messaging apps are great for instant communications. Self-destructingmessages, however, are antithetical to public records laws. Also: possibly illegal. Veneracion loves instachat. Keeping up with her obligations to the public? Not so much.
She said she didn’t know if it violated the city or state’s public records laws. “I should find out though!” she wrote in a message.
Unfortunately, those who are on top of public records laws aren't exactly sure either.
San Francisco’s public records law doesn’t address new forms of electronic communication like encrypted or ephemeral messaging apps, but it “has become an ongoing topic of discussion” on the Board of Supervisors’ Sunshine Ordinance Task Force, said the task force’s administrator Victor Young.
Presumably, these discussions are being preserved. (Not that it matters. Most deliberative discussions fall under public records exemptions.)

Whatever the real reason for using self-destructing messages to conduct government business, it's clear those using Telegram really don't want to discuss their actions.
San Francisco supervisor Aaron Peskin, who has been seen by The Information as active on the app, didn’t return requests for comment. One government official said Supervisor Kim also uses Telegram. She didn’t return requests for comment.
Legislators and government employees aren't allowed to choose which laws to comply with any more than the rest of us. (Theoretically...) Communications between government employees that are subject to open records requests need to be carried out on platforms where they can be searched and archived. This means no use of Telegram, just like it means no setting up your own private email server.

The irony, of course, is that legislators are currently discussing encrypted communications (including encryption bans) and how law enforcement can no longer obtain communications they used to be able to grab with a warrant. Meanwhile, their own communications are being withheld from the public record... using encryption and automatic destruction. Perhaps the public needs to start issuing statements about how they used to get all these text messages with public records requests but can't anymore, thanks to the efforts of the government.

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