YOUR ALLY
Alert: You Have New Duties to Retain the “Public Records”on Your Cell Phone
Y BY JENNIFER GORDON ATPE Staff Attorney
12 ATPE NEWS
our district may have issued you a lap- to specific exceptions, quickly share records in retop, tablet, or even a smartphone for your sponse to a request. work-related tasks—but you might also be The change in the law reflects the proliferation using a personally owned device to communicate in the use of personal technology. The new rewith co-workers about work issues. sponsibilities set forth in §552.004 of the Texas And though your district might allow or even Government Code require public employees posexpect you to use your own device in the course sessing public information on a private device to: of your job, you should know about a recent legal • Preserve that information in its original form change that gives government employees, includ- in a backup and on the privately owned device; or ing school employees, additional responsibilities • Forward or transfer the public information to to retain work-related information that can be con- the district to be preserved on its server. sidered a “public record”—even if that information Examples of public records you might already is stored on a personal device. The law also created have and need to maintain or transfer include any potential penalties for noncompliance. work-related communications (such as emails and Your district might have texts), downloaded or crealready provided you guidated documents, and social ance on maintaining or media posts. The new law sharing such records on an requires a person to retain ongoing basis. Regardless of (i.e., not delete) such inforBE AWARE YOU ARE NOW whether your district has admation, even after they leave dressed this issue, however, a district, unless the inforLEGALLY CONSIDERED A be aware you are now legalmation is forwarded to the “TEMPORARY CUSTODIAN” ly considered a “temporary district’s public informaOF ANY PUBLIC RECORDS custodian” of any public retion officer. When the inforYOU MIGHT POSSESS AND cords you might possess and mation is requested of you, have new duties to maintain you have 10 days to forward HAVE NEW DUTIES TO such records. Your phone is it, or you could be subject to MAINTAIN SUCH RECORDS. still your personal property, penalties. This duty lasts for and your private informaas long as the district would tion will remain private. However, as a current or retain the information if it were on the district’s former public school employee, you have no right system. The length of time is set in local policy. to keep private any public information you created While the duty to share public records has existed for or received just because it is on your private device. a long time, this new duty to keep records is leading districts to examine their local policies. One Your Responsibilities as a approach public schools may take—and one that “Temporary Custodian” might reduce the number of records you are reSchool districts and their employees have always quired to maintain—is to direct employees to use spebeen subject to the Texas Public Information Act, cific communication apps through district accounts or Chapter 552 of the Texas Government Code. while using personal devices. Such apps could This act gives the public the right to access infor- automatically store data in a place accessible to the mation about public business, including public ed- district, relieving you, the employee, of the obligation ucation. The Texas Attorney General’s Office has to keep it. Districts may also direct employees to use ruled such information is a “public record” regard- district devices when possible, reducing the numless of where it is stored. Districts and their em- ber of records you must maintain or transfer. ployees have an obligation to maintain and, subject continued on page 41
