Q: Some of our Board members communicate with the superintendent and administrative staff via text messaging from their personal device. Most of the communications are not related to District business, but recently the superintendent and one Board member had a lengthy texting exchange regarding an upcoming agenda item. Do the Board members and superintendent need to save or copy these communications?
A: Yes. Communications between school board members and school officials created in the course of government business are public information and subject to the Public Information Act. Senate Bill 944, effective September 1, 2019, clarifies the obligation of current or former officers or employees of governmental bodies who maintain public information on a privately-owned device to either forward the information to the governmental body or its server, or preserve the information in its original form in a back-up or archive and produce such information upon request by the district’s public information officer.
The Texas Public Information Act (“TPIA”) defines public information as “information that is written, produced, collected, assembled, or maintained in connection with the transaction of official government business.” Tex. Gov’t Code § 552.002. Most importantly, public information includes all electronic communications concerning district business, regardless of whether it is communicated from a personal device or account. The Texas Attorney General has confirmed this interpretation in multiple decisions; however, until now, the text of the TPIA has not been altered or amended to clarify storage obligations.
SB 944 places a burden on school officials and employees to ensure that any communications regarding district business are properly preserved. Under SB 944, a school Board member, superintendent, or other officer or employee of the district is considered a “temporary custodian” of public information if the person creates or receives public information in the transaction of official district business but does not provide such information to the district’s public information officer. The bill allows a temporary custodian two options: (1) forward or transfer the information immediately to a governmental body or a governmental body server to be preserved, or (2) preserve the information in its original form in a back-up or archive and on the privately owned device. Additionally, if the district public information officer requests the information, the temporary custodian must surrender it to the public information officer within 10 days after the request is made. Failure to surrender the information is grounds for disciplinary action and could result in other penalties under the Public Information Act.
In the scenario above, both the superintendent and the school board member are temporary custodians of the public information contained within their text exchange. Both individuals have a responsibility to either forward the parts of the exchange containing district business to the district or district server, or to preserve the exchange. If the public information officer requests the information (for instance, in response to a TPIA request), the temporary custodian must surrender the public information within 10 days or be subject to disciplinary action and penalties under the Act.
While the law does not prohibit district officials and employees from using personal devices to conduct district business, the ramifications for failing to properly preserve public information can be serious. In order to minimize the burden on individuals, school board members, administrators, and other district officials and employees are strongly encouraged to avoid using personal communication tools, and especially texting, when conducting official district business. Rather, school officials and employees should consider using school district email accounts and/or communication apps such as Remind 101, which can be directly linked to the district or district’s server, or easily accessed and forwarded to the district’s public information officer. If you have a question as to whether a communication is considered public information, contact your school attorney for clarification.