Is it legal for a public official to immediately delete text messages so that they don’t have to produce them in response to FOIA requests?
Michigan Compiled Laws section 750.491 defines a public record to include “records…received in office.” It says that records are public property. These records may only be disposed of according to MCL 660.2137 and 600.2138.
MCL 750.491 says that a person shall not willfully destroy records, or any part of a record and shall not retain them and refuse to deliver them upon demand being made.
Violation is a misdemeanor punishable by 2 years imprisonment and a fine of $1,000.
Here is a retention schedule for how long records are supposed to be kept. Here is another retention schedule. The retention records do not allow for immediate disposal.
According to the Michigan Municipal League, citing Flagg v. City of Detroit, text messages meet the statutory definition of public records if they involve the communications of a public official in the performance of an official function.
The next question is the Hillary Clinton question – can you avoid FOIA by conducting public business via private emails. If, for example, you’re a school board member, and you conduct business using a personal phone, are you allowed to delete text messages asap in order avoid FOIA?
In Competitive Enterprise Institute vs. OSTP, the DC Circuit said that public officials have to cough up public records when they’re in private control, like personal email accounts. In other words, if someone emails/texts your personal account about public business, that’s subject to FOIA. In addition, a Washtenaw County Circuit Court judge answered the question in the same way in 2019, when members of the public sought disclosure of emails sent to officials’ personal accounts. The judge said the emails had to be disclosed under FOIA.
So where is this at in Michigan today? There’s a case currently pending before the Michigan Court of Appeals. The case surrounds former Michigan Attorney General Bill Schuette (no longer on duty)’s use of personal email to conduct public business. (Because trying to avoid public accountability knows no party affiliation.) The lower court dismissed the appeal on procedural grounds. While the Michigan Supreme Court took the appeal, it doesn’t look like we’re going to get an answer anytime soon, because the Supreme Court leave to appeal stuff only asked questions about the procedural issues that don’t have anything to do with the heart of the matter, which is the issue of using personal devices to conduct business and avoid FOIA.
Here’s another source on the topic of FOIA and personal emails. It concludes that public business done personally is subject to FOIA.
If you prefer to read big words, try this source. It reaches the same conclusion.
In other words, so far, the case law sides with the fact that using personal devices/accounts to conduct official business is still creating public records. And, if you’re creating public records, Michigan law 750.491 says you can’t just destroy them, especially to avoid FOIA.