Last month, Seattle Times reporter Emily Heffter had a nice scoop: Mayor Mike McGinn sent a series of text messages to his old friend and Sierra Club colleague, City Council member Mike O'Brien, to vote against council member Tim Burgess' proposed panhandling law. As we were the first to report, O'Brien initially opposed, then supported, and finally voted against the legislation.  McGinn's lobbying helped dismantle what would have been a veto-proof majority.

Curious what, specifically, McGinn had said to O'Brien (and how O'Brien had responded), I filed a public-disclosure request for all text messages between the two in the days leading up to the panhandling vote. Heffter's article only quoted O'Brien's recollection of the texts.

Electronic messages between elected officials—in fact, any written communication to or from elected officials, in any medium—are a matter of public record under state public records law. However, text messages, as I've noted before, pose a new and interesting problem. Not only can they be easily erased, they exist only on the phones of the sender and receiver—which is why the only record I received "responsive to my request" from the mayor's office was a single page out of McGinn's cell phone bill showing that he had sent  19 texts to O'Brien in two days, including eight logged at 7:40 pm the night before the vote. (The council has not yet responded to a request for O'Brien's texts).

That's interesting, sure—who has fingers dexterous enough to send eight text messages in one minute?—but it doesn't answer my actual question: What did McGinn say, how did O'Brien respond, and was his pressure effective in making O'Brien switch his position on such a major vote? This type of lobbying on civic issues is generally part of the public record (for example, emails between elected officials). Not anymore?

I sort of expected I wouldn't get much of a response—despite the fact that the city attorney's office has said unequivocally that text messages are public records, I ran into a similar wall when I asked for Burgess' text messages in February, when I was told that he had erased his messages and that his cell provider did not store message content in its system.

In theory, elected officials could go the extra mile and copy down their text messages (or cut and  paste them into emails from their smartphones, which nearly every elected official now has), but in practice, they don't, and communications that by law are public are lost forever.

Elected officials are communicating by text more and more—both with each other and with constituents and reporters. The text loophole is a new way for our elected representatives, intentionally or inadvertently, to skirt public disclosure  law, and it's something the state needs to address sooner than later—before something more important than the mayor of Seattle imploring an old friend to switch his vote slips between the cracks.
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