Discussing school business on your cell phone? You may be creating a public record.
Yes, you are responsible for turning over public information on your phone, but there’s no reason to panic
A new law on the books this fall about public records has raised quite a few questions from teachers and other school employees about its impacts. Texas AFT breaks it down for you in the Know Your Rights section of our website, but here’s a practical look at the implications of the law. Senate Bill 944, passed the last legislative session and effective as law on September 1, adds specific language to state code outlining your responsibilities as a public school employee in maintaining and delivering public information. It applies only to information you collect on or after September 1, 2019. Any information that normally is considered public records from government agencies remains available to the public even if it’s on your personal devices. So, for instance, if you did for some reason use a personal email address to correspond with administrators or you used personal software or something like a personal Google account to create documents, that information could be subject to open records requests from the public. Although if you do receive a request for it, you only have to transfer that information and nothing in the law allows for the taking of your devices or your personal information. (You would also, however, be subject to stipulations in the law about not destroying public records and actual criminal charges or district sanctions for not following the law.) Most likely everything you do is going to be on district server somewhere and even if you do use a personal device to access that information, it still is residing with the district. So, we don’t believe this will impact teachers already following best practices for communications and public records. While there are many layers of exceptions to what is considered public information (including student confidentiality laws), SB 944 is a good reminder that much of what you do as a public employee is subject to open records requests. Note that every school district must have at least one person designated as a “public information officer,” someone responsible for receiving requests for records and following the laws governing what should be released as well as district policies that further define how requests are handled. Also be aware that this bill has nothing to do with other legal reasons for confiscating your personal devices–such as warrants from law enforcement agencies. And if anyone asks you for your personal device, contact your union immediately.
Help your Union have the most up-to-date information about your school district. If your district has sent out any guidance regarding SB 944 (or any other bill), please send it to editor@texasaft.org.
PUBLIC INFORMATION ON YOUR PHONE OR OTHER PERSONAL DEVICES
Senate Bill 944 by Sen. Kirk Watson (D-Austin) enacts long-standing Attorney General letter rulings, dating back to 2001, which state that public information held on a private device or in a private account must be released. The bill clarifies that “temporary custodians” of public information such as school district trustees and school employees must maintain texts and emails received on their personal devices (cell phones, tablets, computers, etc.) related to district business or transfer those documents to the district. If pertinent documents have not been transferred to the district, trustees and employees would have to maintain the documents received on their personal devices during their tenure even if they left office or district employment. *Note that SB 944 applies only to documents, including texts and emails, created or received on or after September 1, 2019. See frequently asked questions below: Your district should have a “public information officer” responsible for receiving requests, and they will work with you to get the required information. (The district must respond to the request within 10 days.) The bill includes no specific description of how the public information officer should collect the information or how an employee should transfer the information. SB 944 requires no state-level rulemaking, which means that school districts will implement this law according to their own interpretation. Check your district’s records retention policy to see if there are any recent updates that address SB 944. An employee in possession of requested information has no duty to hand over a personal device on which the information is maintained, but the employee is required to provide the information itself to the public information officer within 10 days. TEX. GOV’T CODE § 552.233(b). If an employee fails to surrender or return the public information requested by the public information officer, the governmental body will have grounds to discipline an employee that is a temporary custodian. TEX. GOV’T CODE § 552.233(c). Also, the temporary custodian will be subject to any penalties provided by the Public Information Act or other laws. For example, a temporary custodian can be subject to a writ of mandamus under section 552.321 of the Government Code or criminally charged with failure to provide access to public information under section 552.353 of the Government Code.
