Florida Attorney General Bill McCollum proposed a good stopgap measure last week when he encouraged state agencies to begin to capture, for public record, any state-related communications that staff or officials receive via text messages. But it's far from the ideal solution to a growing gap in Florida's public records law due to ever-evolving communications technology. What's needed is a clear presumption in law that technology never trumps the requirement to maintain public records about state business.
The issue of text messaging - or PIN messages on Blackberry devices - has come to light amid the turmoil surrounding the Public Service Commission. Three PSC staff members were reassigned or put on leave earlier this month because they'd given their PIN numbers to a Florida Power & Light lobbyist. The agency has no policy for capturing the information transmitted via PIN. That's raised suspicions that the communications sought to circumvent state record-keeping because an alternative, electronic mail, is archived. FPL is currently seeking an extraordinary increase in base rates.
Generally, Florida's public records laws are not prescriptive on what technology requires what kind of archiving. The law's basic assumption is that records must be archived and open to the public unless there is an explicit exemption in law, such as a police officer's home address.
Record-keeping guidelines are set by the Department of State's archives bureau. Guidelines have evolved, in part due to court rulings, to denote that some types of communications, such as hand-written phone messages, are transitory in nature and don't need to be kept. Other kinds, such as all state-related e-mail, do. There are no guidelines for text or PIN messaging. Some contend the messages are no more than a phone message. But that denies the technology's power. The messages can deliver significant information and be forwarded electronically. They should be archived.
Public records experts are divided over whether the archives bureau can unilaterally undertake writing guidelines on text messaging without explicit authority from the Legislature or a court. The PSC and governor's office have adopted another solution by disabling text messaging on state-owned devices.
Neither solution serves the state's long-term technology needs or its public records. Telecommunications is evolving quickly. Agencies should be able to embrace new technology when it improves efficiency. What's needed is an overarching presumption in state law, that before an agency embraces a new communications mechanism, it must develop a system for capturing the traffic it generates.