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On Nov. 6, WW exclusively reported that it had reviewed several screenshots from multiple sources showing that Portland Public Schools leaders, including Superintendent Dr. Kimberlee Armstrong, had communicated about public business on the Signal app over a time span of about 10 months.
That story can be found here.
Signal, an encrypted text-messaging platform, is a private communication app that’s appealing because it stores little user data. Some of the screenshots WW reviewed also show that at least some of the chats between Armstrong and other leaders employed Signal’s “disappearing messages” feature, which allows users to select time frames after which messages are deleted.
Now PPS must grapple with the legal implications of Signal use among its top leaders.
Broadly speaking, Oregon Public Records Law applicable to this situation revolves around two key ideas: what records the public has a right to inspect, and what records governments are legally required to retain. In the case of the former, the definition of public record is very broad: any writing that contains information that would relate to public business or how business is conducted.
But the law regulating what records an agency must retain is a little more narrow, says Yufeng Luo, the deputy public records advocate for the state of Oregon. It includes a clause that agencies must preserve records “necessary to satisfy the legal, administrative, fiscal, tribal cultural or historical policies, requirements or needs of the state agency or political subdivision.” What “necessary” means is a gray area whose contours aren’t well defined, Luo says.
Public interest lawyer Alan Kessler says PPS is in breach of public records law because the exchanges on Signal were related to district business, and because the auto-delete function appears to have been activated in at least some of the conversations.
“Signal is designed to make it hard to save messages,” Kessler says. “Oregon has laws that make it a crime to destroy public records for public officials. Every single time one of those officials is turning on auto-delete and then conducting the public’s business, that’s criminal activity.”
Yet other public records experts WW consulted say the legal regulations around the topic are more murky and depend on the contents of the records, and that public records laws around digital communications are still developing in the state.
These experts include Luo, who works in the Oregon Office of the Public Records Advocate. Luo says quick-turn forms of communication like Microsoft Teams or text messaging have become more routine in the workplace, especially since the COVID-19 pandemic normalized remote work. In many spaces, Luo says texts have at times become a substitute for “informal snap conversations” in the office “that disappear once you utter them,” and such communications are not considered public records under the law. But she says while text messages evoke a similar feeling, the reality is that they store data. Regulating them more closely is a question for the Legislature, she says.
No specific state laws regulate texts or communications on third-party platforms like Signal, but the Oregon State Archives classifies both as public records if the information is unique and relates to agency business; it instructs state employees to retain them accordingly by capturing screenshots and filing them appropriately.
“People are doing more work on their devices and through these types of communications,” Luo says. “I’m not sure that our laws’ recognition of when and how those types of information need to be appropriately stored and kept…has caught up.”
Laws that prohibit tampering with public records, Luo adds, apply a broader definition of public record as well. But they come with the caveat that a person must have “knowingly” destroyed or altered a record, which can be a hard standard to prove.
When a person files a public records request, it prohibits a public agency from destroying any relevant records, Luo says, even ones the agency didn’t necessarily have to retain. But when “it’s not clearly illegal” to dispose of a public record, or an entity allows such a record to disappear after a set period of time, Luo says there’s no recourse to get that record back. In other words, no court order can reinstate something that’s been lost to the ether.
“If it doesn’t exist at the time of a public records request, it doesn’t exist, even if that document was relating to the conduct of the public’s business,” Luo says. “If somebody asks for it, as they could, and it no longer exists, then there’s no recourse under public records law.”
