First published in the October 31, 2009 newsletter for FPERLA (Florida Public Empoyer Labor Relations Association)
The “smart phone” has quickly become an indispensible communications tool for the modern business person. And, for many, the BlackBerry® is an icon of the world’s new addiction to instantaneous communication. President Obama’s nonstop use of his BlackBerry® during his campaign was widely covered by the press and is indicative of just how much society has come to rely on this technology. One unforeseen consequence of this addiction is confusion over how to apply Florida’s broad public records laws to this new technology, particularly BlackBerry® PIN messages.
In addition to text messages and e-mails, BlackBerry® users can send “PIN” messages, an activity known as “PINing.” Each BlackBerry® device has a Personal Identification Number (PIN). Substituting a contact’s PIN for an e-mail address, users can communicate directly between their devices. Users appreciate both the speed of PIN conversations, akin to instant messaging, and the fact that such messages were thought to be unrecorded and therefore confidential.
PIN messages and text messages were originally thought to be transitory in nature and unable to be stored, leading public agencies to believe that such messages were not required to be maintained. Even a report as recent as January 2009, issued by the Florida Commission on Open Government Reform, described such messages as “analogous to the spoken word,” finding that “the public records law most likely does not apply.” As a recent scandal at the Florida Public Service Commission (PSC) and a Canadian lawsuit illustrate, to view PIN messages as merely transitory is incorrect.
Contrary to popular thought, BlackBerry® PIN messages are capable of being captured and stored, and in some instances these messages are already being archived by public agencies and private businesses. For instance, the Canadian Imperial Bank of Commerce in Toronto sued a rival business founded by six former employees. The bank submitted the PIN messages of its former employees as evidence that the employees had discussed a scheme to solicit other business while still employed by the bank and had taken confidential information. The employees seemingly believed that the PIN messages were private and unrecoverable.
In Florida, just five months after the Commission on Open Government Reform published its report, allegations of secret conversations between PSC staffers and utility executives came to light after it was discovered that the PSC’s Legislative Affairs Director attended a Kentucky Derby party hosted by the president of a power company and shared his BlackBerry’s® PIN with lobbyists for the utilities regulated by the PSC. It soon became apparent that several high level PSC staff also shared their PIN numbers with regulated utilities and a media blitz began. Ironically, while the PSC considered PIN messages and BlackBerry® text messages “transitory,” and did not have a policy for recording them at the time, it turned out just the knowledge that attorneys for a utility company had exchanges PINs with several PSC staff was enough to tarnish the reputation of the utilities and the staff involved.
While investigating the contact of staff and sorting out messages the PSC had retained, the PSC Chairman ordered his agency to disable all text messaging on state-issued BlackBerrys®. Shortly thereafter, the Attorney General of Florida announced that his office would begin treating all BlackBerry® PIN messages and instant messages as public records and has established a working group to create procedures for ensuring such messages are stored and available to the public. Not to be outdone, State Senator Dan Gelber, a candidate for Attorney General in 2010, has announced that he intends to file legislation that would clearly require PIN messages to and from a public employee be preserved and be easily retrievable under Florida’s public records laws.
Public agencies that use a BlackBerry® or other “smart phone”, and private corporations that communicate with a public agency using one, should establish a policy that addresses that use. As a public employee there may be a duty to archive your PIN and test messages and as a private employee your PIN or text messages to a public employee may soon be public record.
Courts have already held that information stored on a computer is as much a public record as the written page in a book or tabulation on a file stored in a filing cabinet. As evidenced by actions of the Attorney General, the law is quickly catching up with technology. Now is the time to take steps to protect your organization.