Turns out that Mayor Jim Kenney wasn’t the only elected official routinely deleting text messages. So was Gov. Tom Wolf.
The Inquirer requested text messages and emails related to government business either sent or received in March by elected officials across the region, whether on government-issued or personal accounts. The idea was to see how local, county, and state officials apply the state’s Right-to-Know Law in responding to requests for records.
The exercise grew out of The Inquirer’s report in April that Kenney had for years deleted all text messages on his personal phone, potentially destroying a mountain of public records.
Since asking more than two dozen officials for the records, the newspaper received copies of communications from five, including Kenney, who apparently now saves his government-related text messages. Wolf, however, is the only one who turned over emails but did not provide any text messages. (Five other officials have asked for more time to respond.)
For the most part, the texts and emails The Inquirer obtained were about mundane matters rather than dramatic glimpses of government at work — and a share of those messages were redacted, or blacked out, because the officials claimed an exemption from the law, such as attorney-client privilege. Moreover, the Right-to-Know Law does not spell out what kinds of records must be kept — there are separate laws for that — and the officials and their staffs are allowed to decide for themselves.
In addition, some open records advocates say, the use of personal email and smartphones by public officials helps them avoid scrutiny.
State officials said Wolf uses text messaging only in response to “news updates, scheduling or logistics,” such as to say he is running late or to offer a quick “thanks.” Citing state record retention policy, they argued that those messages are “transitory” — having little or no importance or value — and thus do not need to be saved; his March texts had been deleted by the time The Inquirer requested them.
However, it was Wolf himself who determined that his messages to staff and other government officials did not need to be saved.
Public records advocates say such self-policing can be a problem when it comes to archiving government records. Adams Marshall, an attorney with the Reporters Committee for Freedom of the Press in Washington, said that often the importance of a message isn’t known until much later.
“Imagine if the founders of the United States said, ‘Oh, this letter. It kind of looks like a transitory letter, I’m just going to burn it instead of preserving it,’” Marshall said. “That could’ve been hugely consequential.”
Pennsylvania’s Right-to-Know Law, adopted a decade ago, doesn’t differentiate between “transitory” and “nontransitory” records. By the letter of the law, any message related to government business that exists on an official’s personal phone or email account should be available to the public — unless it falls under a specific exemption.
However, the state’s separate records retention law requires transitory records to be saved only as long as they are “of administrative value,” a seeming conflict with the ideal of transparency in the open records law. Some counties and municipalities also are allowed to discard transitory messages under the record retention laws that govern them.
Melissa Melewsky, a lawyer for the Pennsylvania NewsMedia Association, said the issue of “transitory” records and the different ways in which agencies interpret them are two of the biggest flaws in the state’s policies regarding access to records.
“The lack of a clear standard and lack of a clear retention policy that would allow [messages] to be reviewed is an issue with the record retention policy and ultimately the Right-to-Know Law,” Melewsky said.
Many other states also have separate record retention and right-to-know laws. And transitory messages are often not addressed in laws providing access to public records, said Daniel Bevarly, executive director of the National Freedom of Information Coalition at the University of Florida.
But Bevarly said he found it hard to believe that Pennsylvania’s governor would only be texting messages that are transitory.
“Claiming a total absence of text messages beyond those that are transitory … hints of a lack of transparency and accountability,” Bevarly said.
Wolf’s spokesperson said the governor primarily communicates with staff and other senior officials via phone calls, in-person meetings, and email. He often uses his personal cell phone.
All officials who responded to The Inquirer’s request so far use their personal smartphones for government business. Kenney has since switched to a city-issued cell phone, and the city is finalizing a new text use and retention policy for employees. Step one: Avoid texting about city business.
Both Marshall and Bevarly suggested that a way to avoid questions on whether individuals are properly keeping or deleting government records is to back up everything to text-management software, or forward every message on a personal device to a government account — and then have the agency’s open records officer determine what is a public record.
Some of the emails provided for Lt. Gov. John Fetterman had been sent or received on personal email accounts, but were forwarded to the state email address only after The Inquirer’s records request. They were printed out by his chief of staff.
The volume of emails from Wolf’s and Fetterman’s accounts — 40 and 27 pages, respectively — was smaller than that of emails provided by county and city officials, which ran to hundreds of printed pages.
Delaware County provided Council President John McBlain’s emails and text messages on a flash drive with a copy of McBlain’s Outlook folder. It contained nearly 1,600 emails he sent, received, and deleted.
Delaware County Solicitor Michael Maddren said McBlain’s emails, like other county emails, are stored in the county’s IT system. The IT staff pulled all of the March emails, then Maddren inspected the records to see whether any were exempt from disclosure. (He withheld 18 emails, which he said were covered under the law’s exemptions for privileged attorney-client matters or internal “pre-decision” deliberations.)
Maddren said that Delaware County’s policy is to retain all emails to avoid making a mistake with the current record retention policy for municipalities and counties, which has different time retention requirements, depending on the content of a document.
“We don’t really know without going through every email what’s in there,” Maddren said. “So, at this point, we aren’t deleting them.”
Delaware County was by far the most responsive, with the most comprehensive disclosure and records that were easy to search. Other governments and departments print out the emails and then scan them into PDF format, making them impossible to search.
For example, City Controller Rebecca Rhynhart’s office scanned more than 500 pages. Montgomery County asked for an upfront payment of $320 to print out and redact exempt information on more than 1,000 pages of emails.
Erik Arneson, the state’s open records chief, said that the way the law is written, records kept on computer systems are still considered “electronic” even if printed out on paper and converted to PDFs.
State Sen. John P. Blake (D., Lackawanna) introduced two bills two weeks ago that would amend sections of the Right-to-Know Law, based on what he said were issues derived from case law, user experience, and things that weren’t expected when the law was introduced. One amendment in Blake’s bills includes a requirement that if a public record exists in a specific computer file format, such as Microsoft Outlook, the agency must provide the records in that format.
“I’m always open to amendments,” he said of other additions, but offered caution. “We tried to strike a balance. I need 102 votes in the House, 26 in the Senate, and one signature."