When does a text message on a city employee's personal phone become a public record under state law?

A text message on a personal phone can absolutely be a public record. Under most state public-records (open-records or “sunshine”) laws, what makes something a public record is content and function, not the device it lives on or who owns the account. If a city employee uses a personal phone to conduct public business, the message that documents that business is generally subject to disclosure.

The test is content, not the device

Public-records statutes typically define a record as information that is made or received in connection with the transaction of public business. Courts and attorneys general across the country have widely applied that principle to text messages, regardless of where they reside. The deciding question is usually:

• Was the message about government business? Discussing a permit, a contract, a constituent complaint, or a policy decision points toward a public record.
• Was it sent or received in the employee’s official capacity? Acting as a public servant, not a private citizen.

A text to a spouse about dinner is not a public record. A text to a colleague coordinating a city project very likely is — even on a personal device.

Where it gets fact-specific

State laws differ on the details, so general principles matter more than any single rule:

• Mixed-use phones. When personal and government communications share one device, agencies must still identify and produce the public-business messages. Many jurisdictions require the employee to search and segregate responsive texts.
• Custody and “possession.” Some statutes turn on whether the record is in the agency’s possession or control. Several courts have held that business conducted on personal accounts is still within agency control because the employee acts on the government’s behalf.
• Exemptions still apply. Even a qualifying record may be partially withheld or redacted for recognized exemptions (personal privacy, security, attorney-client, ongoing investigations).

Practical guidance

For agencies and employees:

• Treat any text that documents official business as a record from the moment it is sent or received.
• Preserve it in line with the applicable retention schedule; do not delete it merely because it sits on a personal phone.
• Where possible, route public business through official channels to simplify capture and disclosure.

Because specifics vary, consult your state’s open-records statute, attorney-general opinions, and counsel for a given situation.

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