REPORT TO GOVERNANCE AND ETHICS COMMITTEE
SUBJECT
Title
Review and Discussion of Text Message Retention
Report
BACKGROUND
At the March 4, 2024 Governance and Ethics Committee meeting, the Committee reviewed and discussed the email retention policy for City Councilmembers. The Committee approved a recommendation to amend Council Policy 046 (“Mayor and Council Public Records Policy”) to change email retention from 90 days to two years for City Councilmembers to be brought forward to the City Council for consideration. Consequently, the recommendation was approved by the City Council at the May 28, 2024 City Council meeting.
As part of discussion, the Committee also discussed exploring options for text message retention for a future Governance and Ethics Committee meeting. Based on the Committee’s direction, staff has brought forth options on text message retention for discussion and consideration by the Committee.
DISCUSSION
The Mayor and City Councilmembers are issued City-owned mobile devices to conduct City business. Council Policy 046 (“Mayor and Council Public Records Policy”) (Attachment 1) addresses text messages as forms of communications which are considered public records that may be disclosed unless exempt from disclosure.
Council Policy 046 (“Mayor and Council Public Records Policy”) outlines the following:
1. Any communications, including emails, texts, messages, or comments on social media, to or from the Mayor or City Councilmember that pertain to the conduct of public business, regardless of whether or not they were created or sent to a private or public account, are public records that may be disclosed unless otherwise exempt from disclosure.
2. The Mayor and the Councilmembers shall only use official City email and text accounts to conduct City business.
3. The City shall provide the Mayor and the Councilmembers with separate publicly owned devices such as cell phones and tablets for the conduct of City business.
4. The Mayor and the Councilmembers shall endeavor to keep communications regarding City business out of their personal accounts and shall forward any communications regarding City business that they receive in their personal accounts to their official City accounts.
5. Any communications, including emails and texts that relate to an Agenda item received before or during a Council meeting by a majority of the Council must be disclosed in accordance with Government Code Section 54957.5.
6. No campaign activity may be conducted on City accounts or City devices.
7. If a request for records is received, a search that is reasonably calculated to locate responsive records will be conducted. Privacy concerns can and should be addressed on a case-by-case basis. Communications that are primarily personal, containing no more than incidental mentions of City business are generally not considered public records.
The Mayor and City Council Records Retention Schedule (Attachment 2) identifies the records required to be retained and the retention period Under this schedule, the retention period for correspondence is two years.
California Public Record Act
The California Public Record Act (CPRA) defines a public record as, “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” The California Supreme Court relied on this definition to state that a public record has 4 aspects, “it is (1) a writing, (2) with content related to the conduct of the people’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.” City of San Jose v. Superior Court (Smith) 2017 2 Cal 5th 608, 617. The CPRA applies to text messages on both city and personal accounts/devices and requires that proper identification and care of texts be performed by the City Officials and staff.
Text Messaging Policies and Procedures
The City of Santa Clara currently does not have applications which automatically retain text messages. For Public Records Act requests related to text messages, the current process for the City of Santa Clara is as follows:
1) City staff request the individual to review their text messages on both City and personal mobile devices, to determine if they have any responsive records related to the Public Records Act request.
2) The individual provides screenshots of any potentially responsive text messages for legal review and provide by email.
3) City staff review text messages for as a responsive record and release based on the CPRA and legal review.
As a benchmark, staff reviewed text message retention policies and procedures in place in other cities. The following are current procedures in place at other cities:
• City of Palo Alto: For Public Records Act requests related to text messages, staff reach out to the individual referenced in the PRA to request responsive text messages. If they have responsive text messages, they connect with City IT staff, who use an extraction service, AnyTrans, to transfer the text messages from the mobile phone.
• City of San Jose: For Public Records Act requests related to text messages, staff reach out to the individual referenced in the PRA to request responsive text messages. Those responding to the Public Records Act request are asked to either screenshot text message, send by email to their City email, or forward as an email attachment to their City email address.
• City of Santa Ana: The City of Santa Ana’s Email and Text Message Retention Policy states: All City business communication shall be conducted using City personnel’s work email account. Text message should only be used for non-City business communication. Text messages or screenshots relating to City business shall be immediately forwarded to the City personnel’s work email account with the word “Text” in the subject field.
• City of Sunnyvale: For Public Records Act requests related to text messages, for elected officials, staff reach out to the individual referenced in the PRA to request responsive text messages. Those responding to the Public Records Act request are asked to screenshot text messages. The City of Sunnyvale elected officials are not issued City mobile phones. Sunnyvale uses the application Smarsh to search City staff’s emails and text messages for City issued cellphones. Sunnyvale does not use Smarsh for archiving services.
Options for City-Issued Mobile Devices
The City of Santa Clara uses T-Mobile service for City-Issued mobile devices. City staff met with the vendor Smarsh and T-Mobile to explore the Smarsh application. T-Mobile offers an option to activate the system for text message storage and retention using Smarsh, a company that provides message archiving services to the City’s mobile provider, T-Mobile and works with over 500 cities, counties, and public agencies for text message archiving. This option can be activated per individual mobile lines.
The process entails the following:
1. Activate Smarsh, a cloud archiving platform to automatically archive all text messages for a retention period of two years.
2. No app download required.
3. Smarsh captures, retains, and archives SMS (Short Message Service), and MMS (Multimedia Messaging Services) messages from the T-Mobile network.
4. The iMessage option will be required to be disabled on relevant City Apple iPhones, as iMessages bypass the telephone carriers including T-Mobile and thus Smarsh (ex: read receipts, reactions, typing indicators, text appears green not blue)
5. SMS and MMS messages, including images, videos, emojis, and files will be archived.
6. City staff can search archived text messages by date range, username, specific phone numbers, and specific keywords.
7. City staff can perform the search for responsive text messages on City phones. Councilmembers would only have to search their personal mobile text messages.
8. The text message archive system will maintain and store all deleted SMS, and MMS messages, even if the user deletes it from their device.
The fee for Smarsh service through T-Mobile costs $5 per cellular line, per month plus any additional applicable taxes for text message retention.
The option for establishing text message retention through the Smarsh service, through T-Mobile, is presented to the Governance and Ethics Committee for discussion and consideration.
ENVIRONMENTAL REVIEW
This is an information report only and no action is being taken by the City Council and no environmental review under the California Environmental Quality Act (“CEQA”) is required.
FISCAL IMPACT
The fee for Smarsh service through T-Mobile costs $5 per cellular line, per month plus any additional applicable taxes for text message retention.
COORDINATION
This report was coordinated with the Information Technology Department, the City Manager’s Office, and City Attorney’s Office.
PUBLIC CONTACT
Public contact was made by posting the Committee agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email clerk@santaclaraca.gov <mailto:clerk@santaclaraca.gov> or at the public information desk at any City of Santa Clara public library.
RECOMMENDATION
Recommendation
Consider and direct staff to develop possible modifications to Council Policy 046 regarding the City’s text message retention policy, for consideration and approval by the full City Council
Staff
Reviewed by: Gaurav Garg, Director of Information Technology
Approved by: Jōvan D. Grogan, City Manager
ATTACHMENTS
1. Council Policy 046 Mayor and Council Public Records Policy
2. Mayor and City Council Records Retention Schedule