Email and Text Messages as Public Records for City Officials

A resident texts a council member during dinner about a rezoning application on next week's agenda. The council member replies from her personal phone, says she is leaning toward approval, and forwards the thread to two colleagues to get their take. None of it touched a city server. In many states, all of it may still be a public record, and the forwarding may raise an open meetings question as well.

Most clerks have watched some version of this happen, or learned about it only when a records request arrived with the words "including text messages" in it. The people involved are rarely trying to hide anything. They are busy, they want to be reachable, and their phones are in their hands. The difficulty is that public records law in most states looks at what a message is about and the capacity in which it was sent, not at which phone or account it happened to live on.

This guide covers why messages on personal devices and accounts can be public records, the policy choices cities commonly make, how to capture and retain messages so they can be found later, how to search for them when a request comes in, and how to brief your council so the rules feel like support rather than suspicion. It does not cover AI chat tools, building a retention schedule, or drafting response letters. Those topics have their own guides in this library.

A note before you start. The definition of a public record, the duty to search personal devices, open meetings rules about group messages, and retention periods all differ from state to state, and sometimes from one type of local government to another. Treat this guide as a framework for conversations with your city attorney, your state archives or records agency, and your state clerk association, not as a statement of your state's law.

Why the content usually matters more than the device

Public records statutes generally define a record by its connection to government business. The wording varies, but many definitions turn on whether a writing relates to the conduct of public business and was prepared, used, received or kept by the agency or its officials. Most of these definitions say nothing about who owns the equipment.

In a number of states, courts and attorneys general have considered whether messages about public business on a personal phone or private email account are covered. Many have concluded that they can be, often reasoning that the law would mean little if anyone could avoid it by switching to a personal device. The details differ widely: which officials are covered, whether the agency itself must search, what an official must do to show a search was adequate, and how personal privacy is protected along the way. Your attorney is the right person to tell you where your state lands.

Signs a message is probably a record

Ask these questions about the message, not about the phone:

• Is it about city business? A pending agenda item, a contract, a budget question, a personnel matter, a code enforcement case, or a resident's problem the official is acting on.
• Was it sent or received in an official role? A council member answering a constituent as a council member, or a department head directing staff.
• Did it shape a decision? Messages that inform, influence or record a decision tend to be records even when they are short.
• Does it direct staff or commit the city to something? "Go ahead and schedule the vendor" is city business no matter where it was typed.

Signs a message is probably not a record

• Purely personal content. Family plans, a friend's birthday, a doctor's appointment.
• Campaign activity. Many states treat campaign communications differently from official ones, but the line can blur when a campaign message discusses a pending city matter. Ask your attorney before assuming.
• Passing logistics. "See you at the meeting" or "running ten minutes late" may technically be a record in your state but qualify as transitory under your retention schedule. That is a retention question, covered below, more than a question of whether the message is a record.

Keep one distinction clear for yourself and for your officials. Whether something is a record and whether it must be released are separate questions. A message can be a public record and still be exempt in whole or in part. Exemptions are decided when a request is processed, with your attorney's guidance, not by an official deciding in advance that a message "doesn't count."

The messages that cause the most trouble

Some kinds of messages create more risk than others, either because they are hard to capture or because they raise issues beyond records law.

Group texts among council members

A group thread among elected officials about city business is a records concern, and in many states it is also an open meetings concern. Several states treat a series of communications among a quorum about a matter within the body's authority as a meeting, sometimes called a serial or rolling meeting, even if no one is ever in the same room. The rules on what counts, and on whether a thread with fewer than a quorum is safe, vary considerably. This is one of the most important points to cover in a council briefing, and it belongs to your attorney to explain.

Messages during public meetings

Texts that arrive from residents, staff, lobbyists or colleagues while an official sits on the dais can be records, and they can create a transparency problem if the public sees members reading and replying during deliberation. Some councils address this in their rules of procedure as well as in their records policy.

Personal email accounts

An official who uses a personal email address for city business leaves records spread across an account the city cannot search directly. The simplest control is to give every official a city email account and make it the default for anything related to their role.

Disappearing and encrypted messaging apps

Apps that delete messages automatically, or that are set to do so by default, can destroy records before the applicable retention period ends or while a request or litigation hold is pending. Many cities prohibit these apps for public business for exactly that reason, and some states have addressed them in guidance. Encrypted apps that keep message history raise a different issue: they may be secure, but the city still needs a way to capture and produce city business from them.

Social media direct messages

A private message to an official's page about a city matter is no different in principle from a text. Officials who run public pages in their official capacity should know that the messages behind the page may be records too.

Staff, not just elected officials

Department heads, managers and line staff use personal phones as well, especially in the field. A policy written only for council members leaves a large gap. Most cities find it easier to write one policy that covers everyone and add a few provisions specific to elected officials.

Policy options for city business on personal devices

There is no single correct policy. The right choice depends on your state's law, your city's size and budget, and what your officials will realistically follow. A policy that looks strict on paper but is ignored in practice protects no one.

If you consider an automated archiving service, confirm current capabilities in a demo and in writing before you rely on them. Ask which message types and apps are captured, what happens when a phone is replaced or a carrier changes, how exports work for a records request, where the data is stored, and who at the city can access it.

What every policy should contain

Whichever approach you choose, a usable policy usually answers these questions:

• Who is covered: elected officials, appointed board members, the manager, department heads, all staff, or some combination.
• Which tools are approved for city business, and which are prohibited, such as disappearing message apps.
• The capture rule: what must be copied or forwarded, where it goes, and within how many days.
• Open meetings reminders: a plain statement that group messages among members can raise open meetings issues, with a pointer to the attorney for questions.
• Cooperation with searches: an expectation that officials will search their own devices and accounts promptly when a request requires it.
• Litigation holds: a statement that holds reach personal devices and accounts that contain city business.
• Device changes and departures: what happens when someone replaces a phone, closes an account, or leaves office.
• Acknowledgment: a signed or recorded acknowledgment that each person received and read the policy.
• Review cycle: who reviews the policy and how often.

Who adopts the policy matters too. A policy that binds elected officials may need council action, while a staff policy might be an administrative directive from the manager. Your attorney can tell you which form fits your city's charter and code.

Capture practices that hold up

Capturing a message means getting a complete, accurate copy into a place the city controls and can search. The goal is that someone handling a records request two years from now can find the message, read it in context, and trust that it has not been altered.

Email

• Copy the city account at the time of sending. When an official must use a personal address, copying or forwarding to their city address at the time of sending is easier than reconstructing it later.
• Forward the whole message. Include the full thread and attachments, not a summary.
• Be cautious with automatic forwarding from a personal account to a city account. It captures everything, including personal mail the city should not hold. If you consider it, talk it through with your attorney and IT staff first.
• Ask residents to use city addresses. Publish official city email addresses on the website and in agendas so residents have an obvious place to write.

Text messages

Texts are harder than email because phones store them differently and export options vary by device, operating system version and app.

• Capture the whole thread, not just one message, when context matters to understanding what was said or decided.
• Make sure screenshots show the essentials: the date and time, the other party's name or number, and the full text of each message. Screenshots preserve content but can lose some underlying details, so they are a fallback, not a first choice, if a better export method is available to you.
• Use built-in export or sharing features where they work, and write down the steps for the phones your officials actually use. Test them yourself before you put them in a handout.
• Do not rely on carrier records. Carriers may be able to show that a message was sent and to whom, but you should not expect them to provide what it said.
• Include photos, files and voice messages that were sent as part of a city business thread.

Where captured messages go

Decide on one destination and tell everyone what it is. That might be a dedicated folder in each official's city email account, a shared records mailbox, or a location in your records management system. Use a consistent naming pattern, such as the date, the official's name and a short subject, so the messages can be found and filed under the right retention category later.

Retention: applying your schedule to messages

Once a message is captured, it is retained according to its content, the same as a paper letter or memo. The medium does not set the retention period. The subject does.

• Substantive messages follow the category that fits their subject. A text approving a change order follows the retention period for contract or project records. An email answering a resident's code complaint follows whatever category covers that kind of case.
• Transitory messages may have a short period. Many state general schedules include a category for transitory or short-term records, but definitions and periods differ. Read your state's definition closely. A message that seems trivial may not meet it.
• Pending requests and litigation override retention. Do not delete anything that is responsive to a pending records request or covered by a litigation hold, even if its retention period has passed. Many states make this explicit, and your attorney will want it treated as absolute.
• Litigation holds reach personal devices. When your attorney issues a hold, make sure it goes to every official and staff member who may have relevant messages, in plain language, with clear instructions not to delete threads or change phone settings that auto-delete messages.
• Check phone settings. Some phones and apps can be set to delete messages after a period of time. Officials should know where that setting is and keep it off for any thread that contains city business, at least until messages have been captured.

Phone upgrades and departures

Two moments are easy to overlook: replacing a device and leaving office. A short checklist helps.

• Before trading in, resetting or recycling a phone, confirm that city business messages have been captured or backed up.
• Before closing a personal email account used for city business, confirm that city business has been forwarded.
• When an official or staff member leaves, review captured messages with them, confirm nothing is outstanding, and record that the review happened.
• Confirm whether any litigation holds or pending requests apply before the person leaves.
• Retrieve or wipe city-issued devices according to your IT procedures, after records are secured.

Searching personal devices when a request comes in

When a request reaches messages on personal devices or accounts, your job is to coordinate a search that is reasonable, documented, and respectful of the official's privacy. In many places the city cannot simply take the phone. The official searches their own device, and you help them do it well.

1. Read the request carefully. Note whether it names a person, a subject, a date range, or specific message types such as texts or messages on a particular app.
2. Notify the official promptly and in writing. Explain what is requested, the date range, and when you need results. Be specific so they do not have to interpret the request themselves.
3. Give written search guidance. Suggest search terms, names and numbers of likely contacts, and the dates to cover. Remind them to check every account and app they used for city business.
4. Ask for complete, responsive messages. That means full threads with dates, times and participants, not summaries or excerpts the official selected.
5. Ask how the search was done. Ask your attorney whether your state expects a written description of the search, and whether a sworn statement is appropriate. In some states, an official's sworn account of their own search has been treated as a reasonable approach.
6. Route results for review. Responsive messages go through the same exemption review as any other record, with your attorney's guidance.
7. Document every step in the request file: when you notified the official, what guidance you gave, when results came back, and what was produced.

Reassure officials about privacy. Only messages responsive to the request are produced, and purely personal messages are not part of the search. Many people resist the process because they imagine their whole phone being handed over. Explaining the actual scope often settles the worry.

If an official does not respond, or declines to search, do not try to resolve it alone. Bring your attorney in. The clerk coordinates the process, but enforcing cooperation from an elected official is not a burden the clerk should carry by themselves.

Briefing council members without lecturing them

Council members are more likely to follow a records policy when they understand why it exists and when the expected behavior is easy. The briefing is your chance to make both things true. It works best when it feels like help from a colleague who wants them to stay out of trouble.

When to brief

• At orientation for newly elected or appointed members.
• When the policy is adopted or meaningfully changed.
• As a short refresher once a year, or at the start of each new council term.
• One on one, when a member asks or when a request names them for the first time.

Invite your city attorney to deliver the legal portions, especially open meetings rules. A briefing that touches on legal advice may also raise questions about whether it should be held in open session, so ask your attorney how to structure it under your state's law.

What to cover

• Why messages on personal devices can be records in your state, in two or three plain sentences.
• What the city's policy requires, and the single easiest way to comply.
• The open meetings risk of group messages among members.
• The city's position on disappearing message apps.
• What happens when a records request names them, and what you will ask them to do.
• Litigation holds and phone settings.
• What to do before replacing a phone or leaving office.
• Who to call with questions: you for process, the attorney for legal issues.

Scenarios to walk through

Abstract rules fade quickly. Short scenarios stick. Walk through a few and invite questions.

Tone

Start from respect. Most members already want to do the right thing, and many have never been told that their personal phone could hold public records. Avoid opening with worst cases. Instead, frame the policy as protection: a clear practice makes their own records easier to find when a request comes, keeps their personal messages out of the picture, and shows residents that the council conducts its business openly.

Make the easy path very easy. Give each member a one-page summary, the address of the city records mailbox, and written steps for forwarding or exporting messages on the phones they actually carry. Offer to sit with anyone who wants help setting it up. Ten minutes of patient help is often worth more than an hour of presentation.

Next steps

You do not need to fix everything at once. A steady sequence works better than a policy written in a rush after a difficult request.

• Ask your city attorney to summarize, in writing, how your state treats city business on personal devices, whether officials must search their own devices, and the open meetings rules on group messages.
• Read your state's general retention schedule for categories that cover correspondence, electronic messages and transitory records.
• Inventory current practice. Find out which officials have city email accounts, who has city-issued phones, and how messages are captured today, if at all.
• Choose a policy approach from the options above, draft it with your attorney, and route it for adoption in the form your charter and code require.
• Write the capture steps for the devices people actually use, and test them yourself.
• Schedule a council briefing with your attorney, using a handful of scenarios.
• Add device changes and departures to your onboarding and offboarding checklists.
• Set a review date for the policy, and check in with your state clerk association for current guidance in your state.

If your office uses Govera, its commitment tracking can help keep the follow-up items from a council briefing visible, and its institutional memory search can help you find earlier council discussion of records and device policy. Whatever tools you use, the work that matters most is the same: a clear rule, an easy path, and patient help for the people expected to follow it.