FOIL- AO- 18923

From: Jobin-Davis, Camille (DOS)
Sent: Thursday, July 26, 2012 10:31 AM
Subject: Freedom of Information Law - text messages
Attachments: Scan001.pdf

Dear ,

This is in response to your email, attached, which I believe still deserves a response –

There is not a lot that I can add, unfortunately, to the information provided earlier by Mr. Freeman.
Correspondence related to town business, whether it is sent during a public meeting or not, is a
"record" of the town, subject to the Freedom of Information Law, and its content would determine
whether it was required to be made available in whole or in part. As Mr. Freeman pointed out, the
question is whether the agency can retrieve the communication, and the required retention period.
Retention schedules are promulgated by New York State Archives, and available online, towards the
end of the page, at the following link:

I wish that I could be more helpful. Please let me know if you have further questions.


Camille S. Jobin-Davis, Esq.
Assistant Director
NYS Committee on Open Government
Department of State
99 Washington Ave, Suite 650
Albany NY 12231

Tel: 518-474-2518
Fax: 518-474-1927

From: Freeman, Robert (DOS)
Sent: Wednesday, April11, 2012 2:13PM
Subject: Re: text messaging on personal
smartphones during board meetings

Thank you for the prompt response,

I'd like to give you some info concerning the nature of my inquiry and ask your guidance
regarding another couple questions.

Having recently retired from a 30 year career at IBM, I was asked to volunteer and am
currently the co-chair of the technology advisory committee for a local municipal government
on eastern LI, where this issue has caused a stir. My purpose is purely to seek the facts so
the committee can have a policy discussion grounded in fact.
While at IBM, I spent some time delivering Records Mgmt solutions to clients seeking
compliance with SEC 17a-4 & NASD 3010 so I know a little about the regulatory requirements
for books & records and the technological solutions designed to capture email, electronic
documents and text messages. The need to capture text messages, came into play as a result of
the litigation concerning insider trading in which a 'regulated user' would be sitting in a
meeting texting on his personal phone to a 3rd party directing them to conduct transactions
given the info he was privy to at that meeting (or something like that). Ten years ago, this
was a big deal at the top Wall Street firms getting sued & fined by NYS Attorney General. A
new industry was born and the technology companies & service providers continue to made a
fortune in this area. My point is the technological solutions are not new.

At the municipal level it would appear from what I've read on the NYS Archives website &
concluded from your email, that correspondence related to Town Business exchanged by an
elected official during a public meeting would be subject to NYS Records Law & FOIL
regardless of whether the device is a Town issued cellphone or a personal cellphone? I am
defining a public meeting specifically to be a Town Board Meeting to which 4 Town Board
elected officials and the Supervisor (also elected) attend. Can you comment?

At this moment, we have no policies related to conducting Town Business on personal phones
however several Town employees are asking the question. It seems to me, avoiding the issue
isn't a justifiable position since the technology while cost prohibitive, is available to
capture the texting. If cost is the driver the Town could either not allow personal phones to
be used during a public meetings or issue Town employees phones and record the texting. Is
there a policy at the state level you can send me a link to?

FYI, and to cover all the bases, I sent a letter to ATT's Nat'l Compliance Ctr in FL asking 2
technical questions: (a) how long they retain text messages and (b) what is the process for
obtaining it assuming it came from a legal source. I also called NYS IT department and asked
them if they had a policy regarding text messages by public officials, thinking I didn't want
to trouble you further with my questions. The gentlemen told me: he thought he read somewhere
that text messaging is not allowed in public mtgs and then without my referencing our email
exchange) he directed me to you :-)

Thanks again for your time and have a great day

ps: i share your opening comment .. i wonder what could be so important that an elected
official has to spend 30% of their time texting while sitting in a board meeting? But then
that isn't FOILable) is it? :-)

On Apr 11, 2012, at 8:27 AM, wrote:

Aside from the absence of courtesy and respect for the public) assuming that the messages
involve Town business and can be retrieved) yes) I believe that they would be subject to
FOIL. Whether they must be retained in accordance with the "records management law" would
likely be dependent on their nature and content. The definition of "record" in the Arts and
Cultural Affairs Law differs from and is narrower than the definition of that term in FOIL.

> Robert J. Freeman
> Executive Director
> Committee on Open Government
> Department of State
> One Commerce Plaza
> Suite 650
> 99 Washington Avenue
> Albany) NY 12231
> Phone: (518)474-2518
> Fax: (518)474-1927
> Website: http:(
> -----Original Message-----
> From:
> Sent: Tuesday, April 10, 2012 10:16 PM
> To:
> Subject: text messaging on personal smartphones during board meetings
> I have observed my town board elected officials texting frequently during televised Town
Board Meetings. Are those text messages subject to FOIL? Should those text messages be
recorded consistent with NYS records management law?
> Please advise)