Editorial: When private messages become public

Editorial Board • Jan 6, 2020 at 6:30 PM

Sullivan County Attorney Dan Street recently offered some good advice to county commissioners that anyone in public office and even public employees should follow: If it’s public business, do not use private devices to communicate it.

Street also reminded commissioners that if they use their personal devices for public business, they have created a public record. We would hasten to add that if you’ve created a public record on your personal device, you do not own it; the public does. Nor may you destroy it. Even if you’re a public employee, your private cell phone records can be considered public records if you created them for a public purpose, and it is unlawful for you to delete them.

Members of the Sullivan County Commission were urged by Street not to communicate about county business through emails or texts on personal devices. He reminded commissioners that requests for public records often seek copies of emails and text messages in which elected officials have talked about county business.

“My solution would be that you do not communicate on county business either through email or text messages unless you are quite prepared to turn them over when somebody requests them,” Street said.

Street noted that complying with requests for personal email addresses or texts from a private device can be a huge task. A request for such a record requires the government to search through and separate messages of a personal, non-county business nature from those being sought because they do contain county business or having someone else perform that process, which would expose personal information the writer might not want to be shared with anyone.

Street said the level of some requests for communications of elected officials is almost enough to make people not even want to be involved in government anymore. And requests will come, Street said.

“I hope to assist you and prepare you for that,” Street told the commission. “Just don’t do it.”

But when they absolutely have to quickly communicate important public business, what’s the option? One is for the county to purchase and maintain cell phones for each commissioner, who would only use those phones solely for communicating about county business. That’s an expense commissioners may not support. And even with a public cell phone, a request for public records may still require a search of private devices.

If you’re an elected official or even a public employee, records you may have created on a personal device must be maintained, even if switching devices. Tennessee Code Title 39 makes it “unlawful for any person to ... destroy, conceal, remove or otherwise impair the verity, legibility or availability of a government record.”

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