What if you send a selfie and add some scribbled text and find out later that it was a mistake and got into the wrong hands? What if a government official wants to send an important message, maybe an embarrassing, intimate or politically charged message, but he wants to make sure that the world won’t find out about it? In the olden days of email and Facebook, whatever you sent was in cyberspace, maybe forever, for anyone to see. But today, we can make our messages disappear, because they can be sent via Snapchat.
Snapchat offers a variety of options, but the basic idea is that a message can be sent, and then disappear ten seconds later. It’s as though it was never sent. Only our memories keep it alive.
What does this have to do with government? Here in New York, we have the Freedom of Information Law, known by many as “FOIL”. That law deals with public access to government records. There’s also the federal Freedom of Information Act (FOIA), which applies to federal agencies, and every state has some sort of an access to records law.
Since 1978, FOIL in New York has applied to all government agency records. When it was enacted, there was no internet or email. High tech was an electric typewriter. A distinction between our law and many others is that the term “record” was defined then to mean any information “in any physical form whatsoever” kept, held, filed, produced or reproduced by, with or for an agency. Based on the definition, FOIL clearly applies not only to paper records, but also to email and other electronic communications kept in some physical form.
All of that is terrific when it comes to accountability and the possibility of disclosure to the public. But FOIL applies to existing records, and what if the message is sent through Snapchat, and poof! Now it’s gone, and FOIL no longer applies! Can that be legal if its effect defeats the purpose of a law that’s designed to provide access to government records to the public?
If it’s the message asking whether you’d like to go to lunch tomorrow, it may have nothing to do with government business, and it can probably disappear legally. However, if the message relates to government officials functions, chances are that it has to be preserved, at least for a while.
There are laws, fortunately, that deal with the retention and disposal of government records. Government officials can’t simply get rid of records because they don’t want them around anymore or to prohibit others from gaining access to the records. There are records retention schedules that generally relate to the importance of a record. If it’s the invitation to meet for lunch, the retention period is likely zero, and that kind of email can be destroyed. But if it’s the email message where the high government official directs employees to take certain action, or the message that deals with various rights that a member of the public has exercised, chances are that the record has to be kept for months or even years.
Great — the records retention schedules for years have guaranteed that government keeps records based on rules that involve the significance of the records. But it’s 2016, and technology has changed our lives. If an individual, including a government official, wants to cover his tracks, tell the world, “I never said that”, or that he never communicated with a certain person….Snapchat, for better or worse, can be used to make it seem true.
And there may be nothing we can do about it.
The above was prepared for distribution by the New York News Publishers Association.