How To Address The Sunshine Law Text Messaging Issue

The general rule of the Sunshine Law is that every person has the right to inspect or copy any public record made or received in connection with a transaction involving official business by a public body.

Public records include all documents, regardless of physical form or characteristics, and are not limited to traditional written documents: emails, SMS messages, letters, memos, maps, books, and recordings, all fall under the definition of “public records,” as they are a record made or received in connection with transactions of official agency business.

In this context, any public official who uses his or her mobile phone to exchange SMS messages or emails with another official, or with anyone else, should have the communication logged and archived, and it should be available to the public upon request, according on the Sunshine Law.

From this perspective, when a message sent to/from a commissioner’s mobile device disappears, that person could be the target of criticism, as in the recent case of Orange County commissioners who are now subject to an investigation initiated by the Florida Department of Law.

The FL. Statute sec. 119.011(1) (1995) expansively defines “public record” to include: “all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of physical form, characteristics or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

So how can we avoid these cases? The fact is, there are multiple solutions: One of the possibilities could be to forward county-related text to an archive, similar to the one established for commissioner email. Another could be to hold each board member personally responsible for saving those text messages.

Yes, either of the aforementioned solutions could work, but there is one more alternative. And if you are looking to comply with the Sunshine Law, the method the department adopts should aim to be totally transparent for both sides: the user and the public.

A third-party tool that monitors, stores and provides easy access to all text messages initiated and received on the mobile device could be the answer.

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