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Text messages off limits, Walsh says

Mayor Walsh denies records request for text messages exchanged during Olympic bid

Boston Mayor Marty Walsh spoke at a news conference in Boston after the city was picked by the USOC to bid for the 2024 Games.
Boston Mayor Marty Walsh spoke at a news conference in Boston after the city was picked by the USOC to bid for the 2024 Games. (Winslow Townson/AP/File)

Mayor Martin J. Walsh, who vowed to usher in a new era of transparency at City Hall, has rejected public records requests in recent weeks seeking access to his text messages at significant moments in 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, Daniel Koh, 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 so they could be provided to the Boston Globe.

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The Walsh administration made a similar assertion when rejecting a request for Walsh’s text messages from Mike Beaudet, an investigative reporter at WFXT-TV (Ch. 25) who teaches journalism at Northeastern University.

Open-government advocates dismissed the argument that technological barriers prevented disclosure of the text messages, especially when those assertions came from Walsh, a mayor who has made data a centerpiece of his administration. One simple solution: Text messages can be photographed as screen shots and then e-mailed. There are also programs available to download text messages from a phone.

“There’s a ton of ways to get text messages and export them. I don’t understand why they wouldn’t be able to provide you with those text messages,” said Adam Marshall, a legal fellow at the Reporters Committee for Freedom of the Press, which tracks public records laws across the country. “That seems ridiculously inept. If they are promoting the use of technology for good governance, then this is the perfect opportunity for them to follow through.”

The city of Boston’s lawyer, Caroline Driscoll, also said the administration does not require employees to save texts, and the messages are not stored or archived by the city. The records are hosted by cellphone companies, which routinely purge text messages from phones, Driscoll said.

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She did not say whether the text messages had been purged or still existed on phones used by Walsh and Koh. The mayor’s communications director, Laura Oggeri, added in an e-mail that Walsh was “open and transparent in every aspect of his work.”

“Mayor Walsh does not make official decisions or conduct substantive city business through text message. To request his personal text messages is a violation of his private life,” Oggeri said about the Globe’s request for text messages between the mayor and his chief of staff.

Under Massachusetts law, the electronic communication between the two men should be made public, according to Robert Ambrogi, an attorney who serves as executive director of the state Newspaper Publishers Association.

“The presumption is that any record, whether electronic or hard copy, that is made or received by a public official is a public record unless there is a specific exemption,” Ambrogi said. “There is no specific exemption for text messages.”

With the evolution of technology, texting has become a primary means for frank discussions without the formality of e-mail. The messages have played key roles in court cases and other legal disputes. New England Patriots quarterback Tom Brady, for example, has been accused of destroying his cellphone to eliminate text messages that would have proved he was part of a conspiracy to tamper with footballs before games.

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In government, text messages sparked controversy in Omaha when the local newspaper reported that Mayor Jean Stothert lobbied city councilors during hearings via text. Under pressure from the Omaha World-Herald newspaper and the Nebraska attorney general’s office, Stothert revised an executive order to make city-related text messages on private cellphones public record.

“The public’s business is the public’s business,” said Emily Shaw, deputy policy director for the Sunlight Foundation, a nonpartisan organization that advocates for using technology to make government more open and accountable. “It really shouldn’t matter whether it is in printed or electronic format, whether it’s recorded on paper, in an e-mail, or in a text message.”

Boston has never had a chief executive with a penchant for texting. Unlike his predecessor, Thomas M. Menino, Walsh is a voracious texter who has two iPhones. His administration has followed Walsh’s lead, with text being a dominant method of communication in City Hall.

Walsh told reporters he received 100 congratulatory text messages on the January night that Boston was named the US bid city for the Olympics. He has spoken publicly about exchanging text messages with Governor Charlie Baker, Mayor Eric Garcetti of Los Angeles, and other public figures. Several members of the Boston City Council said they frequently text with the mayor.

Secretary of State William F. Galvin, whose office oversees Massachusetts public records law, declined an interview request to discuss text messages. In a public records guide published by Galvin, it noted that the law “applies to all government records generated, received, or maintained electronically, including computer records, electronic mail, video, and audiotapes.”

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The city has contacted Galvin’s office to ask for guidance about retention and disclosure of public employees’ text messages, Oggeri said.

Beaudet, the investigative reporter and professor, worked with his students to file a request in March for all of Walsh’s e-mails and text messages that included the word “Olympics” over a two-month span. The city told Beaudet there were no text messages, which he said he found strange.

Beaudet then filed a broader request seeking all of Walsh’s text messages over a month. The administration again rejected the request because officials said the city did not have a practical way to retain text messages for public record purposes. Beaudet has appealed the case to the secretary of state.

Todd Wallack of the Globe staff contributed. Andrew Ryan can be reached at andrew.ryan@globe.com .