Text Messaging Policies

Overview

Text messaging is an important part of communication that is increasingly used by local government staff and elected officials. Like many other forms of communication, it is important to remember that text messages that relate to local government business can be considered public records. In 2015, the decision in Nissen v. Pierce County clarified this by stating that:

[T]ext messages sent and received by a public employee in the employee’s official capacity are public records of the employer, even if the employee uses a private cell phone. (Emphasis added.)

All local governments should develop a clear policy for how text messaging can or cannot be used by employees and elected officials, as well as how text messages will be managed and retained to satisfy the requirements of the Public Records Act (PRA).

Below are various policy approaches that jurisdictions in Washington have taken, as well as sample policy language options for each of the approaches. Local governments can use or modify the language options provided to fit their specific needs. MRSC also highly recommends reviewing the Washington State Archives Text Messaging Guidance Sheets before developing a policy, particularly the information regarding the retention and management of text message records.

Ban on Texting

One approach is to ban the use of text messages without exception. While the simplicity of this approach is appealing, it does not account for the extent to which the use of text messages has become commonplace in society. For more on what to do if an agency employee or official sends agency texts from a personal device or account, please see MRSC’s blog PRA Applies to Work-Related Texting on a Personal Cell Phone.

Example

• Thurston County Personal Mobile Device Policy (2012) — Does not allow any texting on cell phones for any county business. No exceptions.

Texting Banned with Limited Exceptions

Another approach is to ban texting generally but provide a process by which employees can receive authorization to text based on specific circumstances.

Examples

• Federal Way Employee Guidelines (2023) — Prohibits the use of text messaging to conduct government unless approved by department director during a regional disaster or emergency.

• Tumwater Technology Use Policy (2018) – Conducting city business via text messages on cell phones and other electronic devices (whether owned by the city or not) is allowed only on devices that are enrolled in a text message archive service managed by the city's IT department.

• Prosser Cell Phone Allowance (2022) — Allows texting only when the phone is synchronized with the city’s computer system so that proper retention can be ensured. See Policy 403. 

Texting Allowed with Proper Retention Practices

Some agencies place responsibility on employees to ensure proper retention of agency text messages. 

Example 

• Grandview Personnel Manual (2022) — Does not include specific policies regarding text messaging but makes it clear that work-related text messages are subject to public disclosure and that the employee is responsible for retaining such records in accordance with law. See Section 25.01.3. 

Texting Allowed, but Only of a Transitory Nature

Another approach that some agencies are taking regarding text message policies relates to making a clear distinction between “transitory” and “non-transitory” records. Based on guidance from the Washington State Archives, “transitory” records have limited retention value and can be deleted when no longer needed for agency use.

Practice Tip: If a Public Records Request (PRA) is made, and there are transitory and/or other records that exist which are responsive to that request, those records need to be made available to the PRA requestor (subject to possible exemptions), regardless of whether those records could’ve been deleted as transitory records before the agency received the PRA request.

From a practical standpoint, this approach requires that agency staff and officials properly distinguish between a transitory vs. a non-transitory record. For agencies that go with this approach, we recommend that the policy is clear about: 

1. What constitutes a transitory record, including examples of such records
2. What is explained above in the “Practice Tip” regarding transitory records that are responsive to PRA requests.

Examples

• Olympia Electronic Records — Allows texting of a routine or transitory nature but prohibits texts that involve substantive matters (“policy, contract, formal correspondence, or personnel related data”) Also says that any text messages that are work-related and need to be kept should be immediately transferred to the city’s network or devices. See Policy 4.4.4.

• Ellensburg Personnel Policies Manual (2023) — Employees are instructed not to use instant messaging or text messaging for communications records that have retention value and provides examples of what may be considered a "transitory" message.
• Enumclaw Acceptable Use of City IT Resources Policy (2023) — Primarily covers transitory messages but does explains what staff should do if something that has retention value was sent via text.
• Kent Text Messaging Policy (2016) — Draws a distinction between “transitory” and “non-transitory” texts and provides that non-transitory texts should not be sent.  It also provides procedures to follow when a public records request for texts is received depending on whether the text is on a city-owned or a personal cell phone.
• Redmond Information Technology Usage – Text and Instant Message Use (2018) — Provides examples of permissible and impermissible texts that can be sent on a city-owned device. See 11.200 Information Technology Usage. 
• Shoreline Use of Text Messaging for City Business (2017) — Establishes that all text messages should only be used to send messages of "transitory" nature. Provides examples of texts that are allowed and texts that are not allowed, as well as providing an exception to the policy for uncommon or major emergency responses.