Address talk of official business on self-deleting message apps
Pennsylvania lawmakers were told late last month that they should consider legislation to address the use of self-deleting messaging applications by government officials to discuss official business, the Pennsylvania Capital-Star reported.
The message, delivered by open records advocates to the state Senate's Intergovernmental Operations Committee, was a necessary and timely one.
Aaron Scherb, of the government accountability group Common Cause, recently told the Baltimore Sun: 'Unfortunately, at all levels of government, whether federal, state or local, we see elected officials and government officials try to avoid public records laws and retention laws by using messaging apps and self-deleting messages.'
Pennsylvania's Right-to-Know Law means that officials' emails and other electronic communications can be deemed public records and subject to potential disclosure like any other type of record.
The state Office of Open Records says that the law does not distinguish between types of records, such as printed material, electronic databases, emails and so on.
Every record is subject to a two-part analysis – is it a record? That is, does it document a transaction or an activity of an agency? If so, is it a public record, or can it be withheld under the law or a court order?
But messaging apps such as Signal – which recently made headlines after U.S. government officials used it to discuss plans for airstrikes on Yemen – and Snapchat can erase users' messages after a certain period of time.
So when government officials use those apps to discuss public business, it can mean their messages are erased forever, with no way to go back later and see whether they should have been preserved for possible disclosure under the Right-to-Know Law.
The Capital-Star reported that Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, told the Senate panel: 'Oftentimes the best evidence of whether the law was violated or complied with is going to be the actual record, and if it's gone, there's no way to prove what happened.'
And Liz Wagenseller, head of the Office of Open Records, said there are no penalties if a record is 'inappropriately deleted before the Right-to-Know request was made,' the Capital-Star reported.
There are obvious complications when it comes to changing this state of affairs.
For one thing, it's hard to know if and when officials are using these apps at all, let alone whether they're discussing official business on them. (The U.S. officials' discussion of Yemen strike plans on Signal might never have come to public light if a participant hadn't accidentally included a journalist in the group chat.)
But any electronic discussion of official business must be done in a format that can be preserved for the required length of time for public disclosure under the Right-to-Know Law.
State lawmakers should explore ways to ensure that happens in Pennsylvania.
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