Are My Private Text Messages Public Records? Maybe. Many school employees believe that text messages on their personal cell phones are immune from a public records request, but that is not necessarily true. It does not matter if the text message is on a work cell phone or a personal cell phone. Public records are those “in the custody of” certain school personnel, and both phones are in your possession.
If an employee uses their personal phone to text about school district business, and keeps that text message, that may be a public record. If the text message pertains to the transaction of public business, it is not protected simply because you used a personal cell phone. If the text message is solely about personal business and personal communication, it is not a public record.
Many text messages are not “preserved” by employees of school personnel; they are deleted. If the text message is not still on your phone, that may be the end of the inquiry. However, if the text message was a public record, regarding the business of the school, and was deleted, there can be legal and monetary consequences for not preserving the text message.
Who is subject to the Public Records Law?
Arizona Public Records law applies to “any person elected or appointed to hold any elective or appointive office of any public body and any chief administrative officer, head, director, superintendent or chairman of any public body.” See A.R.S. §39-121.01(A)(1).
In a school district, this definition includes members of the Governing Board, members of the administration, certificated employees and classified employees as each is either elected or appointed to his or her public office or employment.
How long do I have to maintain a “public record”?
This depends on the type of record. The Arizona State Library, Archives and Public Records Division maintains record retention schedules which outline how long each type of record must be maintained. Those schedules are available for online searching by clicking here.
It is highly advisable to follow the records retention schedules as to how long a document must be maintained, and also when it can be destroyed.
Short Answer: Do not use text messages on any device to communicate about school district business. This remains a gray area, and a school district employee may have to produce text messages from their personal cell phone if it is used to conduct school district business.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Are My Private Text Messages Public Records?, or other Education Law matters, please feel free to contact Erin H. Walz at 480.461.5379, log on to www.udallshumway.com or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.