January was a significant month for Boston Mayor Michelle Wu.
She was preparing for her first state of the city address, on Jan. 25, typically the mayor’s most important annual speech in which Boston’s chief executive ticks off accomplishments and lays out a vision for the coming year.
Typically, there should be a flurry of communication in the immediate run-up and aftermath among Wu’s inner circle: last-minute tweaks to the speech, discussion about key points of emphasis, or even some congrats afterward.
But you wouldn’t know it if you tried to read any text messages the mayor sent or received then. That’s because, in response to a Globe public records request asking for texts from and to Boston’s chief executive between Jan. 20 and 27, the city did not produce a single one. Boston’s public records officer told the Globe the mayor “does not conduct official City business via text message and does not retain text messages.”
“As such there are no records responsive to your request,” the official, Shawn Williams, wrote.
In response to a Globe request, Williams also argued that, “Generally, records such as text messages are considered ‘transitory,’ meaning the retention period is brief. Transitory public records do not require permission from the Supervisor of Records for destruction.”
The published state public records guidelines to municipal governments say that general administrative records must be retained for three years, while correspondence dealing with policy development should be kept for five. “Transitory messages,” the policy states, should be retained “until administrative use ceases.”
Benjamin J. Wish, a partner at Todd & Weld LLP, said, “Whether something’s a public record doesn’t depend on the medium of communication, it depends on the substance and whether it falls into any of the public records exemptions.”
If “an official with the city of Boston is talking about public business that doesn’t fall into an exemption of public records law, it doesn’t matter if it’s written on a napkin, a text message, or a formal memo, it’s a public record,” said Wish.
The Globe requested text messages from a number of Boston elected officials, including Wu, who campaigned for mayor on themes of government transparency and accountability, during a fairly busy week in January. Historically, local politicians’ text messages have proved to be difficult to procure through the state’s public records law.
And the Boston City Council wasn’t much more forthcoming than the mayor in response to a Globe public records request. The ask was similar: all texts to or from all 13 councilors for the week of Jan. 20 to 27. It produced a single, innocuous text exchange about food waste and pest control.
When it comes to texting as public records, the issue of whether the city is violating the law may hinge on a simple question: Do the city’s elected officials not communicate about work via text?
Robert J. Ambrogi, executive director of the Massachusetts Newspaper Publishers Association and a lawyer, said elected officials’ texts should qualify as correspondence per the law.
“If the messages relate to the course of business of what you’re doing as a government employee, then they should be retained,” he said. “If you’re texting your spouse about where to have dinner, that’s not necessarily covered.”
But Massachusetts’ public records laws are fairly toothless, he said, hence there is a “laissez-faire attitude to compliance.”
The reality is there’s little punishment if requests are delayed, ignored, or refused outright. Appealing public records responses can be tedious and “doesn’t necessarily lead to compliance,” he said. At times, it can be pointless.
“If they’re not even retaining this stuff ... what does it get you?” Ambrogi said. “Those records are gone and you’re never going to get them.”
Part of the problem, according to Justin Silverman, executive director of the New England First Amendment Coalition, is that “we have to take the word of the particular agency or public official that they’ve gone through all their texts.”
“There isn’t a whole lot of recourse for requesters when they’re in a situation like that,” said Silverman.
If texts are being sent and received by government employees and then deleted a short time later, that would represent a “major red flag,” he said.
Regarding the city’s response to the request for Wu’s texts, Silverman said, “It doesn’t seem right that all text messages would be considered transitory under this policy.”
“Text messages can be as long as an e-mail or other communication subject to the public records law,” he said. “Messages as short as a single word can be significant when considered collectively with other texts in an exchange.”
He added, “Even if Mayor Wu is correct about the law, this retention policy seems short-sighted and ripe for abuse.”
Boston’s handling of public records requests has been inconsistent in recent years — across multiple mayoralties. Most recently, the city’s response to inquiries about retaining records was itself wobbly, with officials walking back a statement from the Department of Innovation & Technology that said flatly that Boston does “not have a text message retention policy.”
Instead, Wu’s office says that while the city’s various records retention policies did not explicitly mention texts, they are covered under multiple protocols, with the e-mail management and retention policy alone running five pages long.
But Boston does not appear to have a software program in place to retain employee texts.
In 2015, under Mayor Martin J. Walsh, who also vowed to usher in a new era of transparency at City Hall, the city rejected public records requests seeking access to his text messages regarding Boston’s failed bid to host the 2024 Olympics.
The city denied a request from the Globe that sought text messages between Walsh and his chief of staff on key dates during the short-lived pursuit of the 2024 Summer Games. In a July 31 e-mail, a city lawyer delineated several reasons why the records would not be divulged and noted that the administration lacked the “technical capacity” to make copies of the text messages.
The city shortly after sought to create a system to archive text messages. The Walsh administration acknowledged in a request for proposal, “text messages with substantive content must be preserved; however, the City currently has no way of ‘archiving’ or otherwise saving text messages.”
But in 2017, after a review of state record retention guidelines and discussions with labor relations officials, the city said it decided to “not move forward with issuing a contract” and the system never came to fruition.
Andrew Ryan of Globe staff contributed to this report.
Danny McDonald can be reached at email@example.com. Follow him on Twitter @Danny__McDonald.