Orange County’s ‘Textgate’ Scandal Shows Need for Texting Policies

Mobile technology is creating new ways for officials to violate public records laws. Orange County, Fla., learned that the hard way.
by | June 2013
 

Last September, a nasty little controversy over an undetermined number of deleted text messages erupted in Orange County, Fla. Commissioners there were accused of trading texts with opponents of a ballot referendum during public hearings on the measure. When local media outlets and supporters of the measure -- which would require businesses in the county to provide paid sick time to employees -- sought the texts, they discovered some had been erased.

Dubbed “textgate,” the scandal raised ethics questions about county leaders and created a huge headache for county CIO Rafael Mena, who had the task of recovering texts related to the ballot measure. But the event had larger implications too: Mobile technology is creating new ways for our officials to run afoul of public records laws. That’s why the issue needs more attention from CIOs and public leaders.

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Ultimately, the incident prompted Orange County to tighten up its treatment of texts. Mena recently flipped the switch on a new system that captures and stores text messages sent and received by county-owned devices. Messages are saved in a searchable repository and can be quickly retrieved to comply with records requests. The county also inventoried county-issued mobile devices and disabled texting for employees who lacked a business justification for the service.

A new training program drives home the point that employees are responsible for retaining work-related text messages even if they’re using personal cellphones, like county commissioners were during the incident. “They can forward the content of the text message to our email system so it will be saved,” Mena says, “and they need to understand that the police can come and get their personal phone to do forensics on it.” Employees who fail to complete the training will be disciplined, he adds.

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Mena arrived at these solutions while trying to recover the deleted texts last year. He quickly discovered that wireless carriers don’t retain the content of text messages, so he was forced to dig into the guts of the phones themselves. As with any other type of computer, deleted messages are still rattling around inside of a smartphone until the device actually reuses the portion of memory containing those messages. Until the messages are overwritten, it’s possible to retrieve them -- but it’s not always easy. “Depending on what device was being used,” Mena says, “we were able to recover them all or not [at all].”

Having lived through textgate, Mena urges others to confront the issue head on as he was forced to do. First, he says, determine if your default stance is to treat texts as public records or as transitory communications that aren’t subject to disclosure. Then train your workforce on the policy to ensure they understand and follow it.

The key is to develop explicit guidelines for text messages before controversy arises -- and you can expect the matter to crop up more frequently as mobile devices permeate society. Florida’s tough sunshine laws pushed Orange County to adopt a policy that assumes business-related texts are public records, but that approach won’t be right for everyone.

“Sit down and determine what is legal, because every state has different records retention laws,” Mena says. “But don’t ignore it.”

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