This article appeared in the Fall 2019 edition of The Classroom Teacher

That question will be making the rounds on school campuses throughout Texas this year as a result of recent legislation.

Senate Bill 944, which went into effect on Sept. 1, 2019, modified the Texas Public Information Act. That law requires governmental entities, including school districts, to turn over written information in their possession when requested. The underlying law has been in place for decades, but the recent changes have a direct impact on school district employees. Amendments to the law directly cover “temporary custodians” of records; i.e., teachers. 

Every time you send an email to a colleague on your cellphone, you may be creating a public record. If you are conducting official governmental business, then your communication is a “record.” If you are emailing parents or discussing classroom or school-related issues through email or texts, you are likely conducting governmental business and have created a “record.” Your work-related communications on your personal device are now subject to disclosure upon request, which means you are now required to preserve and/or forward these records to the district.  

How did this happen? 

Simply put, the law finally caught up with the modern world. The Texas Public Information Act is intended to create transparency between governmental entities and the public. Much like the federal Freedom of Information Act, the Texas Public Information Act obligates governmental entities, including public school districts, to disclose information upon request. There are numerous exceptions to what is disclosed, but generally, if a member of the public formally requests a “record,” it has to be turned over. If you conduct school business on a personal device (cellphone, tablet or computer), you may have to give your district access to data on the device. 

How can you avoid this? 

Do not use your cellphone to send work-related emails or texts. Do not communicate about matters relating to students, parents or the district from your personal device. Yes, we all want to use our cellphones to quickly communicate, but there are natural consequences to this action — you risk having the information on your phone be subject to disclosure. 

Rather than using your phone to directly communicate with students, you should use a school-approved app-based communication platform. Most platforms create a central repository of communications, including all direct and group messages. Records are stored on a server, not on your personal device, thus transparency will be achieved, and your device will stay private. If your district requires you to turn on location services on such a platform that may track personal information unrelated to your duties, you may wish to call the TCTA Legal Department to discuss the legality of this requirement.

Another way to safeguard your personal device is to not have school email forwarded to your phone. This protects your property and gives you an added advantage of unplugging from work. There will be no more late-night emails that you feel obligated to respond to immediately. If an administrator asks why you did not respond to an email in the middle of the night, you can say that you do not want to become a temporary custodian of records. 

If none of your communications are on your cellphone, your phone will not be subject to public record. If a district gets a request and asks you to respond, you can simply say: “I do not have any records on my cellphone. I do not use my cellphone to conduct official school business. I have not preserved or maintained any records because I have not created any records on my personal device.” 

But what if you cannot unplug? 

If you simply must text or send emails from your personal phone, the law’s parameters will now explicitly cover your actions. You will become a temporary custodian of records. There is nothing inherently wrong with that, but you will now be obligated to preserve and maintain those records. Specifically, the changes to the law require you to either “(1) forward or transfer the public information to the governmental body or a governmental body server to be preserved as provided by Subsection (a); or (2) preserve the public information in its original form on the privately owned device for the time described under Subsection (a).” The timeline to preserve information that is not “currently in use” will be set by the local governmental entity. It could be weeks or years. 

If you do not want to maintain these records, you can simply forward them to the school district (most likely a designated public information officer). Keep in mind that how these records are preserved by a temporary custodian is up to the temporary custodian. In other words, you can choose what to do with the records. You can keep them on your personal device, or you can send them to the district. You must preserve or forward ALL of your work-related emails, texts and other communications. If you use your school email address on your phone, it is very likely that the emails are already preserved on a district server, but make sure before you delete anything on your device.

If you fail to comply with a request to turn over information, you could face adverse employment actions, up to and including termination or nonrenewal of your contract. Note that a requirement to turn over records does not mean that the district or anyone else has a right to search your phone for records. The district may have a right to access public records, but it does not have a right to access personal information for which you have an expectation of privacy. Additionally, there are state law penalties for failure to comply with a public information request. Members with questions about this law should call TCTA’s Legal Department at 888-879-8282.