Self-deleting message apps confound Pa.’s public access law, Senate panel hears

When government officials do the public’s business using apps that automatically erase their messages, transparency and accountability take a hit, open records advocates told Pennsylvania lawmakers Monday. 

They called on members of the Senate Intergovernmental Operations Committee to consider legislation to address the use of platforms like Signal and SnapChat, to ensure they can’t be used as an end run around the state’s public access laws.

Pennsylvania’s Sunshine Law requires the deliberation of public business to take place in public with ample notice. Even a simple majority of a school board or borough council discussing business triggers the law’s requirements. 

Since its debut in 2008, state courts have interpreted the Right-to-Know Law, which provides access to public records, to accommodate evolution in the way public officials use technology. Emails and other messages, even on officials’ personal accounts and devices, can be public records under the law.

“The courts have said it doesn’t matter where you’re conducting agency business,” Liz Wagenseller, executive director of the Office of Open Records. “It could be a Facebook message. It could be a LinkedIn message. It could be a YouTube video. If you’re conducting agency business, it may be subject to the Right-to-Know Law.”

But the first consideration when the Office of Open Records hears an appeal by a member of the public is whether the record they’re seeking exists.

“The Right-to-Know Law is silent on whether or not a record should exist. There are no penalties or admonishments if there’s a record that was inappropriately deleted before the right to know request was made,” Wagenseller said, noting that officials could face penalties if they act in bad faith to conceal a record.

And while the state Historical Commission publishes guidelines on how long municipalities, counties and other government agencies should preserve records, they’re not always closely followed, Frank Mazza, director of government relations for the County Commissioners Association of Pennsylvania, said. The manuals are hundreds of pages long, he said.

“If you’re a public official, as you probably all well know, you have a million other things rolling through your mind and understanding what your responsibilities are on page 92 of the record retention policy related to county airports isn’t always at the front of mind,” Mazza said. He added that his group  provides training and encourages officials to seek advice when in doubt.

Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, said journalists have increasingly encountered situations where officials used apps such as Signal – known as ephemeral messaging in legal circles – to make decisions.

“That’s obviously a violation of the law, but just as importantly, it erodes the public trust,” Melewsky said.

In written testimony to the court, Melewsky cited cases in Bucks County and Pittsburgh where public officials used Signal. Claims that they violated the Sunshine Act and Right-to-Know Law followed.

“Oftentimes the best evidence of whether the law was violated or complied with is going to be the actual record, and if it’s gone, there’s no way to prove what happened,” she said.

Committee Chairman Jarett Coleman (R-Lehigh) noted the Broad + Liberty reported earlier this month that an attorney for the Shapiro administration said in court that emails from a cabinet secretary who resigned amid scandal had been deleted before retention policies said they could be. 

Pennsylvania isn’t alone in grappling with the conflict between ephemeral messaging and public access. In Missouri, a court found in 2022 former Gov. Eric Greitens and his staff had not violated the law by using a “self-destructing messaging” app prior to his administration adopting a policy to ban the use of such apps.

Joshua Bonn, a Harrisburg lawyer specializing in government transparency, said Pennsylvania laws afford public officials some discretion on whether messages can be deleted or need to be preserved. He  used the example of a township manager texting about an issue on a road as a “transitory message” that an employee may determine doesn’t need to be preserved.

“The history is that there have, time and time again, been reports of public officials who have deleted messages that are later determined to be public records,” Bonn said. “If you want to preserve public records, there needs to be some sort of direction from the legislature regarding how much time electronic messages need to be retained.” 

Sen. Vincent Hughes (R-Philadelphia) said the issue seems to be present across all levels of government. 

“How do we, how do we manage all this?” he asked “This is a lot.”

Melewsky suggested the panel could look to other states for guidance on how to tackle the issue. 

Coleman said the committee would consider whether the Sunshine and Right-to-Know laws need to be clarified or broadened to ensure they apply consistently across all levels of government, whether more training is needed for public officials and whether the existing investigative and enforcement provisions of the law are sufficient.