A Muzzle Award to Michelle Wu for declining a request to produce official text messages

Are text messages to and from government officials public records? You might think it’s complicated. On the one hand, texts are in written form, like emails, and those are unquestionably a matter of public record. On the other hand, texts resemble conversations in that they tend to be informal, used to express fleeting thoughts.

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In fact, though, it’s not complicated. Text messages are public records, period. And so I’m handing out a New England Muzzle Award to Boston Mayor Michelle Wu, whose office claims it can’t comply with a request by The Boston Globe to produce text messages that she says she’s exchanged with developers. As the chief executive of the state’s largest city, Wu and her staff surely know better.

According to Globe reporter Catherine Carlock, Wu, during a visit to the Globe’s offices in April, disputed the notion that she is hostile to developers, saying, “I have personal sit-downs with developers. I can show you my text messages right now.” But when the Globe followed up by submitting a public-records request, the city’s director of public records, Grace Jung, responded in an email by saying:

The City of Boston does not conduct official business by text message. Any work-related text messages sent by City employees are transitory in nature, and are used for non-substantive communications…. The City has no mechanism to, and does not, maintain text messages.

The city’s policy as described by Jung is outrageous. By now it’s a well-established principle that text messages are public records. Justin Silverman, a lawyer who’s the executive director of the New England First Amendment Coalition, told me by email:

The public records law includes text messages. Whether they are sent through a wireless provider or app like Snapchat or Signal, they are subject to disclosure. While Mayor Wu is quick to say she doesn’t conduct city business via text, her comments to The Boston Globe indicate otherwise and she should make good on her offer. The argument that these text messages are “transitory” and can be deleted is also unsound. By making these texts a part of policy conversations, the public interest in their disclosure only increases. This practice of using text messages to skirt around the law needs to be challenged before other officials follow suit — if they haven’t already.

In an editorial criticizing Wu, the Globe observed that Wu’s predecessor as mayor, Marty Walsh, had to admit he’d been deleting text messages when he couldn’t produce them in response to a public-records request filed by the Globe and a Northeastern University journalism class. In other words, Wu was already on notice. The editorial called Jung’s claim that city texts aren’t retained “little more than an attempted end run around the state’s public records law.”

The Reporters Committee for Freedom of the Press further states that texts are regarded as public records in Massachusetts under the same public-records law that covers emails:

Text messages and other electronic messages constitute a record. “Public record” is “broadly defined to include all documentary materials or data created or received by any officer or employee of any governmental unit, regardless of physical form or characteristics.” SPR Bulletin 1-99, “Electronic mail” (revised and reissued May 21, 2003), at ¶ 2 (emphasis added).  The Attorney General has opined that emails “made or received in an individual’s capacity as a government employee” must be disclosed. Guide to Mass. Pub. Recs. Law 9 (Sec’y of Commonwealth, Div. of Public Records, updated Dec. 2022).  The Supervisor of Public Records has defined email as “any message created on an electronic mail system,” which in turn is defined as “a service that provides facilities for creating messages, transmitting them through a network and displaying them on a recipient’s computer terminal.” SPR Bulletin 1-99 (2003).  Both the general and specific language appear to encompass text messages and instant messages.

Of course, all of this comes with the caveat that Massachusetts has one of the weakest public-records laws in the country. Among those exempt: the governor’s office, the legislature and the judiciary. But Mayor Wu is most definitely covered, and if she didn’t know it before, she knows it now.

And let me close by observing many local officials in the state’s 351 cities and towns may be unaware that their text messages are public records when they are related to official business. If they don’t have systems in place to retain them, then they need to start working on it.