Text Messaging Raises Municipal Legal Requirements Massachusetts

Laws Adapt To Preservation of All Electronic Relevant Documentation Including Text Messaging

Modern communication methods and laws will be interpreted by courts in most cases the documents must be preserved.

Text messaging and emails leave an electronic record of dialogue that can be entered as evidence in court.

The Massachusetts Rules of Evidence state that electronic or digital communications may be authenticated by:
1. confirming circumstances “that would allow a reasonable fact-finder to conclude that this evidence is what its proponent claims it to be.”
2. that “neither expert testimony nor exclusive access is necessary to authenticate the source”

Government officials are constantly conducting business in multiple forms of electronic communications by phone, email and including texting.

Massachusetts has moved to include all records of these electronic communications as items subject to a request under the Freedom of Information Act Request, FOIA.

Example: Town of Falmouth Electronic Mail Employee Handbook 4/5/16:

"The Town of Falmouth utilizes a system where employees receive and send messages through a computer mail system, e-mail. Computer mail is intended for business use. In keeping with this intention, we maintain the ability to access any messages left on or transmitted over the system. Because of this fact, employees should not assume that such messages are confidential or that access by the employer or its designated representative will not occur."

Massachusetts
Text messages are public records subject to the requirements of Public Records Law.
It is usual for a city or town attorney to send a text message to state officials instead of an e-mail or to use their personal device, instead of an official city phone.

These electronic messages are increasingly being legally recognized as matters of public record, which means that secure FOIA archiving in a proper manner is required.

The Massachusetts Public Records Law (Law), found in Chapter 66, Section 10 of the Massachusetts General Laws, applies to records made or received by a Massachusetts governmental entity. Unless the requested records fall under an exemption to the Law, the responsive documents must be made available to the requester.

Text messages are public records that are subject to the requirements of Public Records Law.

The broad definition of public record includes any electronic communication including, but not limited to, electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network, whether by computer, telephone, or any other device or by any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system.

Massachusetts public records laws consider public all documentary materials or data, regardless of physical form or characteristics. The regulations include all government records generated, received or maintained electronically, including computer records, electronic mail, and computerized records.

All e-mail created or received by an employee of a government unit is a public record.

The Massachusetts Public Records Division requires all government offices to establish written policies regarding electronic communication