Mayor Jim Kenney continued to delete text messages from his smartphone for sixth months after an open-records request revealed that he had been erasing potential public records.
City officials say Kenney started saving the texts in February.
Yet there will be no repercussions for his earlier destruction of communications that might have pertained to official city business.
Ruling on an appeal by The Inquirer, the state Office of Open Records ruled this week that there is no legal recourse for obtaining deleted public records if the city demonstrated a “good faith” effort to get the records and says it was not able to do so. The office said that it only has the power to determine whether a record exists, not whether it should exist.
Melissa Melewsky, an attorney with the Pennsylvania News Media Association, lamented the flaws in the law.
“It doesn’t make sense for the Right-to-Know Law to require public access to a record if the government agency can simply delete that record without consequence," she said. She added that the state’s Right-to-Know Law lacks a way to enforce requirements that records be kept.
In August, The Inquirer used the law to request copies of all text messages related to city business that Kenney had received or sent in July.
Months later, the mayor’s spokesperson, Deana Gamble, acknowledged that Kenney had deleted his July text messages to free space on his phone, as he did monthly. He was using his personal phone for both private and city business.
She also told The Inquirer that the mayor’s staff had asked him after The Inquirer’s request last summer to stop deleting messages, at least until they could figure out a policy on retaining the texts. But in an interview this week, Gamble revised that account, saying Kenney actually wasn’t given the directive until January.
And, in response to a new records request from The Inquirer for the mayor’s October texts, officials acknowledged they had found none because Kenney had deleted them.
The city provided a few text messages from the phones of other city officials that had texted with Kenney that month. Among them: Police Commissioner Richard Ross alerted the mayor he was going out of town for a conference, and left contact information for the deputy chief in charge. Kenney responded with “Have a good trip!” In another, Councilman Curtis Jones shared a link to a story about Starbucks opening a “community store” in West Philadelphia. Kenney responded with a thumbs-up emoji.
A follow-up request for emails and text messages in July between Kenney and five top deputies — from the aides’ phones — didn’t reveal much on how policymakers are conducting city business. That month, the city evicted, then reinstated the Made in America concert on the Ben Franklin Parkway; officials pulled the plug on a data-sharing contract with federal immigration authorities; a massive water-main break in Center City shut down streets for weeks (and months to follow); and Kenney went on his first international trade mission.
Yet the only text messages provided to The Inquirer were from then-chief of staff Jane Slusser asking Kenney when they could confirm a meeting. On a seemingly different day in July, Kenney texted Slusser a copy of President Donald Trump’s statement on the Eagles’ planned-then-canceled celebration at the White House.
“He communicates with members of his leadership team daily,” Gamble said when asked about the absence of text exchanges with so many important staff members. "The Mayor does not conduct City business through text messages.”
Erik Arneson, executive director of the state Office of Open Records, said that if the mayor or any other public officials delete their text messages, the only thing the state office can do is check whether the records exist. To do that, the office relies on a sworn affidavit.
The Inquirer appealed the city’s response to the request for the mayor’s July city-related text messages by citing that the city had not done enough to retrieve those text messages.
Kathie Lonie, the open-records officer for the Mayor’s Office, said in a sworn affidavit that after The Inquirer’s request for the mayor’s July text messages, Kenney’s private cellphone was searched for any requested records and none were found. A search for backup files proved fruitless. Then she added: “Lastly, the phone provider used by Mayor Kenney was contacted to determine whether they possessed any responsive records. The phone provider did not possess any responsive records."
The office of Open Records ruled that the city did conduct a “good faith” search and denied The Inquirer’s appeal.
Arneson said that the state’s Right-to-Know Law, which his office upholds, does not dictate how and which records should be saved. Records retention policies vary from agency to agency.
“I think what all of these cases taken as a whole reveal is a need for a comprehensive look at record retention laws and record retention policies,” he said.
There is no statewide law on record preservation. Philadelphia’s current policy states that, regardless of format, all general correspondence and subject files within the Mayor’s Office “received in the course of developing and administering specific projects, initiatives and programs and providing basic City services or that concern the city’s compliance with law” should be permanently retained. Other correspondence and documentation is expected to be retained “as long as of administrative value.”
Kenney’s chief of staff, Jim Engler, said that the city was drafting a new policy to ban texts for city business.
Text messages “are by their nature short messages — sharing little bits of information such as ‘I’m on my way,’ ” Engler said. “They are not for conducting city business — it should be in an email, personal meeting, or over the phone. If it’s in writing, it should be in email form so it’s easier for us to track.”