Are government text messages and BlackBerry PIN messages public records that must be kept in Florida?

Plain-English summary

This is a policy letter rather than a legal opinion answering a posed question. Writing to Secretary of State Kurt Browning, Attorney General Bill McCollum described a "Sunshine Technology Team" he had formed after a Public Service Commission controversy involving BlackBerry PIN messages. The fact-finding group, which included open-government advocates, agency chief information officers, government representatives, and members of the media, looked at how electronic communications such as BlackBerry messages, Microsoft platforms, and social networking are handled and how they can be captured, retained, and disclosed under Florida's Sunshine and public records laws.

The letter's central point: the team found that all electronic communication on government devices passes through the agency's servers and can be retained "with the flip of a switch." The Department of State maintained retention rules for government email but treated other electronic communications as transitory, with no required retention guidelines. McCollum argued that this no longer matched how government business is actually conducted and urged the Department to begin rulemaking to extend an email-style retention schedule to other electronic communications, including BlackBerry PINs, SMS (text) messages, MMS (multimedia) messages, and instant messaging. He offered the Sunshine Technology Team's input and his office's assistance.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What prompted this letter?
A: A controversy at the Public Service Commission involving BlackBerry PIN messages, which led the Attorney General to form a Sunshine Technology Team to study how government electronic communications are handled under Florida's open-government laws.

Q: What did the Sunshine Technology Team find?
A: According to the letter, the team found that all electronic communication on government devices passes through the agency's servers, so those messages can be retained, contradicting the idea that messages like BlackBerry PINs could not be stored and accessed.

Q: What did the Attorney General ask the Department of State to do?
A: He urged the Department to begin a rulemaking process to update the retention schedule so that the rules applying to government email would also cover other electronic communications, such as BlackBerry PINs, text messages, multimedia messages, and instant messaging.

Background

The Department of State sets records retention schedules for Florida government agencies. At the time of the letter, those rules established a retention schedule for government email but described other electronic communications as transitory, leaving them without required retention guidelines. The letter is the Attorney General urging the Secretary of State to modernize those rules so retention practices keep pace with the communication platforms agencies actually use. It does not interpret a specific statute or resolve a legal question; it is advocacy for a rulemaking process.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/records-retention-of-electronic-communications
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1716

Original opinion text

The Honorable Kurt Browning

Secretary of State

Department of State

500 S. Bronough Street

Tallahassee. FL 32399-0250

Dear Secretary Browning:

Following a controversy at the Public Services Commission (PSC) involving Blackberry PIN messages, I formed a Sunshine Technology Team to explore and understand technology in government communications and their implications on Florida's open government laws. This fact-finding group held three meetings attended by open government advocates, agency Chief Information Officers, state and local government representatives, and members of the media. The group received presentations and engaged in discussion on Blackberry communications, Microsoft communication platforms, and social networking such as Facebook and Twitter.

One goal of the Sunshine Technology Team was to "bust the myth" of how these types of communications are handled from an information technology perspective and how they can be captured, retained and disclosed under Florida's Sunshine and public records laws. Just as the myth that Blackberry PINs cannot be stored and accessed was busted with the Attorney General's office policy announcement in September, the same is true with other electronic communications. Indeed the Sunshine Technology Team identified that all electronic communication on government devices passes through the agency's servers, and as a result, those messages are able to be retained with the flip of a switch.

The Department of State currently maintains administrative rules defining the retention schedule for government agency email. There are no required retention guidelines, however, for other types of electronic communication because the administrative rules describe them as transitory. This is no longer accurate in today's world where business is conducted on a variety of communication platforms. The same rules that apply to email should be considered for electronic communication including Blackberry PINs, SMS communications (text messaging), MMS communications (multimedia content), and instant messaging conducted by government agencies.

Accordingly, I respectfully urge the Department of State to consider initiating a rule­making process updating the retention schedule for electronic communication. Should you wish, I am sure that participants in the Sunshine Technology Team would be happy to offer their input and my office is willing to assist you in any way.

I encourage new technologies to make agencies more efficient and productive, as well as to give our citizens more access to their government. I look forward to your response so that we may ensure that Florida's open records laws keep pace with the speed of technology.

Bill McCollum