“Title 5 Open Government; Ethics, Subtitle A. Open Government, Chapter 552. Public Information – Method of Making Written Request for Public Information” allows governments to obtain records stored on an officer’s, employee’s, or contractor’s private device. The Office of the Attorney General and courts have ruled for years that records held on private devices or in private accounts of officers, employees, or contractors are still records and are subject to records management and public information laws. “Title 5 Open Government; Ethics, Subtitle A. Open Government, Chapter 552. Public Information – Ownership of Pubic Information” also establishes that an officer, employee, or contractor does not have a personal or property right to records created or received while acting in an official capacity.

The Public Information Act was amended to say that government officials who use personal devices to conduct public business are responsible for turning over those messages to an official government account, and/or preserving them on the personal device for the duration of the retention period.

Furthermore, this amendment applies to existing records management laws   “Title 4. Executive Branch, Subtitle D. History, Culture, and Education, Subchapter A, Texas State Library and Archives Commission” governing the preservation, destruction, or disposition to the records held by a temporary custodian.  No matter where a record resides, it is subject to the administrative rules laid out in Records Retention Schedules.

Employees and contractors conducting official state business on mobile devices become “temporary custodians” of the information and are responsible for maintaining the records for the duration of the retention requirement and is not the property of the individual.

Temporary custodians are responsible for turning over public information held on a privately-owned device to the governmental body when requested.

State-owned and personally owned mobile devices storing official records are allowed, but only of a transitory nature.  Temporary custodians are responsible for turning over public information held on a privately-owned device to the governmental body should they request it, like if the information is responsive to a public information request.

For more information to the Public Information Act, please contact the    , disclosure requirements of the Public Information Act, and the   are also a consideration for the management of electronic records.

The Public Information Act focuses on the nature of the communication or document. If the information was created, transmitted, received, or maintained in connection with the transaction of “official business,” defined as “any matter over which a governmental body has any authority, administrative duties, or advisory duties,” the information constitutes public information subject to disclosure under the Public Information Act.  Any public business conducted on a state-issued or personal mobile device, laptop, computer, or external storage device may be considered an official record.