The state of Washington is failing to store backups of text messages from 88,000 government phones that are being wiped on a daily basis, a direct violation of state records retention laws.
The shocking discovery began last November after Fife City Attorney Loren Combs requested four years worth of text messages from a former city manager.
According to The News Tribune’s Sean Robinson, who broke the story Saturday, Combs was told to get a subpoena by Verizon, one of several phone providers to the state, after the city deferred his request to the telecom.
“I was dumbfounded in this case,” Combs told The Tribune. “First that they wouldn’t give it to us without having to file a lawsuit to get our own records.”
Shortly after filing suit, Combs received what appeared to be a puzzling response from Verizon.
“The records that you requested no longer exist because they are beyond Verizon’s period of retention,” Verizon stated. “Text message content is maintained for 3-5 days from the date of transmission/receipt and requires a court order. There are no text message content available for your requested time frame.”
Under Washington state law, Verizon, or any other third party, is not required to keep such information for public records requests. In fact, the responsibility lies solely on each government agency using cellular phones.
“The obligation to retain records and comply with (public records) requests regarding employee usage lies with the public agency,” Verizon spokesman Scott Charlston said.
Steve Excell, Washington state archivist with the Secretary of State’s Office, concurred with Verizon’s statement.
“This is square on a public record – you can’t even try to make the argument that it’s private,” Excell said. “No question text messages, like emails, are just like paper records. They’re a public record. We try to keep ahead of it – but it is challenging.”
According to Robinson’s investigation, more than 700 governments, including “state agencies, counties, cities, universities, schools, ports, tribes and junior taxing districts,” have failed to keep proper records.
“Those public records are literally disappearing as we speak,” Combs said. “They’re just dumping the data. The text I sent you on a city phone last week doesn’t exist anymore, which makes no sense.”
The issue may soon draw the attention of the U.S. Attorney’s Office, which recently demanded the texts of a state auditor under federal criminal investigation.
“The Auditor’s Office is one of many agencies linked to Verizon’s contract,” Robinson noted. “If Verizon’s stated retention policy applies, and the agency took no independent steps to retain records, the texts could be gone.”
Although some state employees could have undoubtedly taken advantage of the issue, the widespread failure of so many agencies to set up proper data retention mechanisms lies mostly in bureaucratic ignorance.
“It’s very uneven out there,” Excell added. “Some agencies send their people to training – they are on top of it. There are other agencies that say, what, text messages, emails? Those are public records?”
In all actuality, given the nature of electronic information as well as the National Security Agency’s policy of collecting text content under certain programs, the data is far from gone.
If anything, the situation highlights the stark role reversal between the public and public servants. As Americans face unprecedented levels of state-sponsored surveillance, government employees, most often at the highest levels, are given a free pass to openly flaunt public records laws.