Your Ally

Public Records on Your Personal Device? Your Rights and Obligations by Law

BY PAUL TAPP

ATPE Managing Attorney Most educators have a mobile device, such as a smartphone or tablet, and they often use their device for work-related tasks, including communicating with co-workers, supervisors, or parents about work issues. While your district may allow or even expect you to use your own device in the course of performing your duties, you need to know about the law that makes government employees—including school employees—responsible for maintaining these work-related communications, even when using a personal device. There are potential penalties for noncompliance because a school employee’s work-related communications are commonly considered a “public record.”

School districts and their employees have always been subject to the Texas Public Information Act. The Public Information Act, the common name for Chapter 552 of the Texas Government Code, gives the public the right to access information about public business, including public education. The Texas Attorney General’s Office has ruled that information that is a public record remains a public record regardless of where it is stored. This means districts and district employees have an obligation to maintain and, subject to specific exceptions, quickly share records in response to a request. While your phone is your personal property, and your private information remains private, you have no right as a current or former public school employee to keep private any public information you have created or received just because it is on your private device.

The evolution of the use of personal technology has meant districts must produce records even if they were created or stored on personally owned devices. You may have already been asked to forward any communication, such as texts—related to a student, class, etc.—that you stored on your device, or you may know someone who has been. You also may have received guidance about maintaining or sharing these records with the district on an ongoing basis. You need to be aware you are legally considered a “temporary custodian” of any public records you may possess and have duties to maintain those records. This set of responsibilities, set forth in §552.004 of the Texas Government Code, requires public employees possessing public information on a private device to: • Preserve that information in its original form in a backup and on the privately owned device; or • Forward or transfer the public information to the district to be preserved on their server. The law requires that a person retain (i.e., not delete) the information, even after they leave a district, unless they forward it to

WHILE YOUR PHONE IS YOUR the district’s public information officer. When the PERSONAL PROPERTY, YOU HAVE information is request-

NO RIGHT TO KEEP PRIVATE ed of you, you have 10

ANY PUBLIC INFORMATION YOU HAVE CREATED OR days to forward it, or you could be subject to penalties. This duty to keep

RECEIVED JUST BECAUSE IT IS the information lasts for

ON YOUR PRIVATE DEVICE. however long the district would have retained the information if it were on the district’s system. That length of time is set in local policy. Examples of public records you may already have and need to maintain or transfer: • Work-related communications, such as emails and texts. • Downloaded or created documents related to your work. • Social media posts if the content is workrelated. Existing law establishes that public school employees can be required to turn over work-related content on their personal devices and requires the employee to either forward the content to the district or keep it themselves. The law does not provide many details, though, such as how long a district must keep records or specify how an employee goes about forwarding records to their district. In the absence of directions, you should seek clarification continued on page 31