When the Federal Records Act was amended, the definition of a record was broadened to include messages sent using various electronic platforms – email, social media conversations, chats, text messages etc. In government agencies, a growing number of work-related discussions take place on personal mobile devices. For that reason, text archiving has become one of the crucial aspects of complying with Freedom of Information Act and State Sunshine Laws.

What you’ll learn in this infographic:

  • get answers to 10 most commonly asked questions about FOIA and content from mobile phones,
  • get a breakdown of state deadlines for responding to a FOIA request and
  • learn how the archiving of mobile calls and texts can help your agency meet FOIA deadlines and improve records management.

text message archiving foia

When the Federal Records Act was amended in 2014, the definition of a record changed to “all recorded information, regardless of form or characteristics”. This new definition included messages sent using various electronic platforms and included email, social media conversations, instant messages, voicemail, text messages and encrypted communications.

As mobile devices become more pervasive, state agencies need to seek a viable way to comply with mobile archiving requirements. In government agencies, a growing number of work-related discussions take place on personal mobile devices – it’s common for a city official to send a text message to a colleague from their personal phone instead of writing an email.

Although effective in terms of employee productivity and cooperation, the BYOD culture puts public agencies at risk of breaching open records laws and exposes them to security threats that can lead to leaks of critical government information.

Government text archiving is one of the crucial aspects of complying with various laws, including Freedom of Information Act and State Sunshine Laws. Public officials who use mobile phones to communicate with their peers or anyone else need to have a way to capture, retain and be able to produce these records in case there’s a request. All correspondence from BYOD or company-issued phones must be properly archived and available for access under the Freedom of Information Act.

Why do public agencies need to archive mobile calls and texts?
– to increase government transparency
– to lessen the risk of expensive FOIA lawsuits
– to minimize the chance of compromising critical government information
– to avoid backlash from the public

10 Quick FOIA Facts

How Old Is FOIA?
The Freedom of Information Act was passed by the Congress in 1966 and allowed every person to request records from a Federal agency and its components.

When Did Mobile Become Part of FOIA?
In 2011, Texas became the first state to characterize business-related mobile text messages as public information and establish guidelines on their retention.

Who Receives the Largest Number of Requests?
According to News Media Alliance, the agencies that received the largest number of requests in 2018 were: FBI, Department of State, NSA, CIA and Customs and Border Protection.

Which Agencies Are Sued the Most?
The list of agencies most frequently sued under FOIA during 2018 is topped by Departments of Justice, Homeland Security, Interior and State.

FOIA Lawsuits Reached Record Highs in 2018
860 FOIA lawsuits were filed in 2018 against government agencies. In addition, the backlog of FOIA suits waiting to be decided rose to 1,204 cases, an all-time high.

Don’t Rely on Your Provider
The majority of major mobile carriers don’t archive mobile text messages at all, while Verizon retains them for only 3-5 days.

Response Times
Although the law mandates that all federal agencies are required to respond to a FOIA request within 20 business days, it takes them 170 days on average. The state with the smallest response window is Vermont, with only 2 days.

State open records request deadlines:

2 DAYS
Vermont

3 DAYS
Arkansas, Georgia, Idaho, Kansas, Kentucky, Louisiana, Missouri

4 DAYS
Connecticut, Nebraska

5 DAYS
Illinois, Maine, Nevada, New Hampshire, New York, Pennsylvania, Virginia, West Virginia

7 DAYS
Indiana, Mississippi, New Jersey, Tennessee

10 DAYS
Alaska, California, Hawaii, Massachusetts, Rhode Island, Texas, Utah

15 DAYS
Delaware, New Mexico, South Carolina, South Dakota

20 DAYS
Iowa

30 DAYS
Maryland

PROMPT
Arizona, Colorado, Florida, Michigan, Minnesota, Ohio, Oklahoma, Oregon, Washington, Wisconsin,

NO LIMIT
Alabama, Montana, North Carolina, North Dakota, Wyoming

The Lack of BYOD Retention Policies Is Still a Problem
Despite the efforts to streamline the adoption of BYOD in the public sector, a significant number of agencies still face difficulties managing BYOD devices in their workplace – 66% of public organizations allow employees to use personal devices for business but only 35% of them retain text messages.

Ignoring the Requests
In what they call a “disturbing trend”, TeleMessage reports that federal agencies spent $40.6 million in legal fees to defend their decision to withhold public records in 2017 only.

The Definition of Record Will Continue to Change
Charles Davis from NFOIC recently said about a case “If every time new technology emerges we’re going to argue it’s not a public record, then our view of public records is very cramped… We’ve got to embrace the future.”

Why are text messages not captured?
– lack of budget
– unclear about regulations
– existing technologies are too complicated

Public agencies can make the management of electronic records more efficient by implementing a comprehensive, yet customizable archiving solution. It is now possible to archive email, social media, text messages, calls and instant messages using a single piece of technology.

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