Is Technology Killing California's Public Records Law?
The recent Cyber Dust secret text messaging scandal at the Fresno Unified School District is exposing gaps in California’s public records law. The app allows users to send confidential text messages that are deleted as soon as they are read. Superintendent Michael Hanson has admitted he asked senior members of his staff to use the app for district business for a short time in 2014. Now open government advocates are asking a big question: Are we entering a new age of government officials using technology to hide from public scrutiny?
"It's pretty obvious that in order to run a democracy we need to run on the principle that our officials are operating in the public interest and under public oversight," Emily Shaw, The Sunlight Foundation
As communication technology has raced forward at breakneck speed, it has left public access to vital documents in the dust. That’s the assessment of some open government advocates who say the law has not kept up with the times.
Emily Shaw works with the Sunlight Foundation, a non-profit that calls for greater government transparency.
She finds the very existence of the secret messaging application Cyber Dust, and its use by public officials, to be a big warning sign.
“It’s pretty obvious that in order to run a democracy we need to run on the principle that our officials are operating in the public interest and under public oversight,” Shaw said.
California’s public record law allows the media and ordinary citizens access to information about what public officials are doing in their name.
It has been used to uncover corruption and scandals, like the case of Bell, California where officials personally enriched themselves with public funds.
California does consider electronic records like texts and email to be covered under its freedom of information laws, but does not prescribe any requirements for maintaining those records. It also leaves open the question of messages sent from privately owned devices and email accounts.
Shaw says this is a concern because apps that help hide information are rapidly proliferating and Cyber Dust might just be the tip of the iceberg.
“There are a number of services out there that are working to achieve this goal of making written electronic communications disappear immediately. This is a goal that clearly there is a market for so I do not anticipate that this will be the end,” Shaw said.
Valley Public Radio decided to compare Fresno Unified’s public records retention policies with other large school districts and the City of Fresno.
It turns out, Fresno’s guidelines are more comprehensive than other districts but all policies leave gaps.
San Diego Unified School District, for example, has no blanket policy guiding employee record keeping at all.
Los Angeles Unified has a policy covering e-mail, which they keep for a year, but there is no mention of other electronic communications such as text and instant messaging.
Fresno’s policy is slightly more comprehensive covering ANY district owned electronic device that can send or receive messages.
However, they too only keep emails for one year and are not required to save text messages at all.
That is why Superintendent Hanson says use of Cyber Dust did not violate district policy, because there is no requirement to save text messages despite their prevalence in everyday life.
Superintendent Hanson did not respond to multiple request for comment on this story.
"I would think that they are skating on legally thin ice," Peter Scheer, The First Amendment Coalition
And as for the City of Fresno, spokesman Mark Standriff says they do not have the technical ability to save all texts but that it is their policy to consider any electronic communications, including texts and social media posts to be subject to open records law.
Emily Shaw with the Sunlight Foundation says this exposes the glaring holes in the state’s law.
“This area where we are talking about messaging services, on telephones or other electronic devices that may not be publicly held, is an entirely new set of questions for lawmakers to work on,” Shaw said.
Cyber Dust’s primary financial backer is billionaire investor and television star Mark Cuban.
In an e-mail conversation with Valley Public Radio, Cuban defended the existence of the app saying it is no different than if two public officials have a face to face conversation that leaves no trace.
Cuban said the privacy can create honesty and quote:
“In this day and age every email, text, tweet or post has to be written with a concern about how it could be misused, by media as an example. Cyber Dust prevents that problem. You can communicate exactly what you are thinking”
What is and isn’t required to be kept for public access is a matter of legal wrangling in California.
A case is currently before the state Supreme Court to determine if messages sent from private e-mail accounts or personal devices like cell phones are searchable under open records laws. The case also involves whether text messaging and other electronic communications should be treated the same as paper records with mandatory records maintenance periods.
Peter Scheer with the First Amendment Coalition says even though the law is murky, apps like Cyber Dust push the boundaries.
“And the staff are directed to use an application whose sole purpose is to destroy all traces of the communication that they have. I would think that they are skating on legally thin ice,” Scheer said.
He says it is becoming clearer every day that the law is simply no longer able to do what it was created for, which is to shine a light into public business.
“What’s the point, after all, of a public records act or freedom of information law if there are no records to provide copies of in response under that act?” Scheer asked.
That’s a question many more Californians could be asking themselves going forward.