CLEAT’s Response to SB 944
By CLEAT General Counsel Robert Leonard
Why Recent Changes To The Texas Public Information Act Should Have All Officers Refusing
To Use Their Own Personal Electronic Devices For Work
Recently we have received several inquiries from officers regarding the newly passed SB 944. What is SB 944? SB 944 added several amendments to the Texas
Public Information Act (commonly referred to as an Open Records Request). One change has a direct impact on all officers.
Specifically, it amends Section 552.003 of the Texas Government Code by adding a subdivision (7).
According to the Senate Research Center the newly created 552.003 subsection
(7) “Requires a current or former officer or employee of a governmental body who maintains public information on a privately owned device to forward or transfer the public information to the governmental body or a governmental body server to be preserved as provided by Subsection (a) or to preserve the public information in its original form in a backup or archive and on
the privately owned device for the time described under Subsection (a).”
In a nutshell SB 944 allows governmental agencies to retrieve public information from their employees’ personal electronic devices such as cell phones, tablets, or personal computers. It covers communications such as texts, tweets, and emails. If the device contains information that
is subject to public disclosure under the Public Information Act then employee and the employer must preserve it and make it available for disclosure.
It is the information on the device not the type of device or who owns it that controls whether it is subject to the Public Information Act. What is even more troubling is that downloading the information to your agency’s server will not be enough.
The new law requires the officer to maintain the information on the device for a defined period. Failure to preserve the information could result in possible criminal charges.
Using our personal electronic devices or home computers to assist us in our work has become “the norm.” However, given the implications SB 944 presents it is foolish for officers to utilize their personal electronic devices for official work purposes. Combine that with the recent case law developing around the country regarding criminal defense attorneys who subpoena officers’ phones due to possible evidence on the device and you can see why using your own personal electronic devices for work is a bad idea.
If officers require a cell phone or tablet to perform their job, they need to request the department issue them one.
As always you CLEAT stands ready to assist our members should you have any questions or run into any problems after the new law is put into effect.