Philadelphia Mayor Jim Kenney. Photo: P.J. D'Annunzio/ALM

Philadelphia Mayor Jim Kenney grabbed local headlines when it was revealed he periodically deletes text messages from his personal cellphone that he also uses for work. 

Kenney's “bring your own device” approach for work is a growing trend in the economy, including the legal industry. But the mayor's deletion habit could be seen as a slight to government transparency. Still, while recovering the mayor's deleted texts from years ago may be difficult, it's not impossible, experts said.

When The Philadelphia Inquirer requested the mayor's text messages from July 2018 regarding city business, the newspaper was told those texts—and years' worth of previous texts—were deleted, a practice Kenney's spokesperson said the mayor did “habitually” to clear space on his phone, according to the article.

Kenney's text messages regarding government work could be deemed a public record according to Pennsylvania's Right-to-Know Law. Under the state law, a record is defined as “any information regardless of its physical form or character that documents a transaction or activity of an agency and is created, received or retained pursuant to law or in connection with a transaction, business or activity of an agency.”

Kenney has maintained his deleted text messages were short and straightforward correspondences. Kenney told local news his text messages consisted of, “'You're on your way,' 'yeah' 'what time will you be there?', 'soon.'” He added, “It's not like I go and write a whole speech in a text on a cellphone.”

Craig Staudenmaier, a Right to Know and media law attorney, noted the law doesn't prohibit deleting texts.

“Nothing would prohibit him from deleting them, you would have to look at the city's record retention policy,” he noted. “It doesn't necessarily mean he did anything wrong, it just depends if they were public records and they needed to be retained.”

“We do not know if records were deleted. We know that texts were deleted because the mayor said that,” added Terry Mutchler, a lawyer and former executive director of Pennsylvania's Office of Open Records.

Still, even if records were not kept, deleted texts aren't necessarily lost in the abyss, according to forensic and e-discovery professionals. But retrieval is not an easy or straightforward process. 

“It is very possible to recover data off of a phone after it's been deleted, but it might not be everything, and anyone that's watched 'CSI' will probably be disappointed by real-life forensics,” said Christine Payne, who co-chairs Kirkland & Ellis' e-discovery committee.

“If someone is hoping that there's a magical backup for everything that's created [they're] going to have a reality check because that doesn't exist,” Payne added. 

Recovering deleted texts can be done by scouring a phone's cloud storage backup and any connected devices. 

Jason Silva, director of Philadelphia-based digital forensics and e-discovery company Cornerstone Discovery, noted phones are backed up periodically and those backups contain text messages. “That backup would tell us the state of the phone,” he said.

However, time is of the essence when attempting to recover deleted text messages, experts said. Kyle McArdle, Cornerstone Discovery's web developer, noted that when a text message is deleted, it isn't initially wiped from the phone. Instead, it's marked as deleted and as time passes and text messages culminate, the text marked as deleted is overwritten.

As for software that can assist in recovering deleted texts, digital forensic professionals pointed to solutions like Cellebrite, which also offers e-discovery tools, and QMobile, a program from e-discovery provider QDiscovery, among others. Such software and a quick response to retrieve deleted data are vital for a successful recovery of texts, Kirkland & Ellis' Payne said.

“The sooner you can get the physical device to the professional, the better; so they can work their magic and tell you what is available or not,” Payne said.