Text messages: Public or Private?

Detroit Mayor Kwame Kilpatrick has come under fire recently for trying to keep records that he produced out of the public eye. The twist is that the records he was trying to suppress are text messages — not printed out memos, e-mails, or other more traditional types of communication. Somehow, in the minds of Mayor Kilpatrick and his attorneys, the source of the documents he was creating in the line of his public duties weighs more than the fact that they are documents created in the line of public duties.

Now, Madison Mayor Dave Cieslewicz and Ald. Zach Brandon have made a similar leap of imagination to try to preempt a situation like what Mayor Kilpatrick is going through from happening here in Wisconsin. Mayor Dave and Ald. Brandon have put together a “city ordinance” stating that text messages are NOT subject to open records law. In light of the recent legislation in Michigan, I am full of wonder that they think they will be able to get away with such an obvious ploy at keeping the public in the dark. I certainly hope that they do not plan to promote their policy as one other cities ought to adopt. (Sorry Bill Lueders.)

The notion that the “public-ness” of records is determined by how easy they are to print is laughable:

“The argument the city attorney makes is that text messages and instant messages are not things you can easily capture,” Brandon said. “There is no easy way to get a text message out of a phone.”

So? Why would you need to get it out of the phone? Maybe the city attorney has never sent a text message, but it’s not hard to forward them to other people. There is no caveat in the open records law that says public documents need to be re-formatted in order to furnish them to the public — indeed, if people are looking for electronic records they don’t (generally) want them printed out and mailed, they want to see them in their original, electronic, form. If I was making a public records request for text messages sent between city employees I would have no problem with receiving them in the format they already exist in. Why that would be mentioned as a reason to exempt text messages from the open records law is unfathomable to me.