Officials evade public records laws by using privately owned portals

By David Cuillier, Ph.D, Editor & Publisher, The Journal of Civic Information, December 2023

This journal article examines government officials using privately owned communication portals to exchange messages, asserting that documents do not become public records if government agencies avoid taking possession of them. This may be defensible under the literal wording of some state public records statutes, but it is inconsistent with the good-government purposes of those laws.

Potential reforms suggested by the article include: 

• Banning public employees from conducting business on platforms that are not built for retaining and producing their communications.

• A roadmap in a recent decision by Michigan to ban public employees from using messaging services that are built to prevent retrieval of messages, either by encrypting all communications or by setting the messages to auto-delete on a short turnaround.

• Defining “records” as documents created by, or made available to, a public employee in the course of conducting government business.

• Assigning primary responsibility to the government agency to structure vendor contracts to ensure preservation and production of public records.