Texas State Capitol and flag in Austin. (Photo: Shutterstock.com)

On Sept. 1, Texas implemented amendments to its public information statute giving it more teeth to enforce the law when government correspondence is made on government workers' personal devices.

Advocates for Senate Bill 944 say it's a needed step that all states, if they haven't already, should enact to close a personal device loophole that leaves many government agencies' records requests at a standstill. 

"It's too easy for elected officials and other employees of government to try to avoid public disclosure of their thoughts and actions [by] using personal accounts," said Bill Aleshire, a Texas-based lawyer who also volunteers at the Freedom of Information Foundation of Texas, which spearheaded the amendment. "The technology has so outstripped most laws on public disclosure, it severely undermines transparency unless that loophole is closed."

In Texas, a public record includes government officials' and employees' government-related correspondence on government-owned or personal devices. Amendment advocates said government workers were able to sidestep state agencies' requests for public records if the correspondence was on their personal device.

Freedom of Information Foundation of Texas executive director Kelley Shannon said the amendments closed Texas' "custodian loophole" that exists in the Lone Star state and elsewhere. "The fact that the information is out there on personal devices is no doubt rampant across the country, but how you handle that information is key," she said.

The amended Texas law now mandates state government workers and officials take no more than 10 days to respond to a request for public records. Failure to respond could lead to "disciplinary action" by their employer. It's a measure that states should have to champion transparency, Shannon noted.

"Other states probably have similar laws [or] should have similar laws and public officials have to act appropriately that this information is saved in the public realm," she said.

The greater emphasis on capturing government workers' correspondence in Texas mirrors a growing overall demand for solutions tracking work-related communication on employees' personal devices, said Robert Cruz, information governance senior director for archiving electronic communication provider Smarsh.

However, Cruz acknowledged such solutions face a hurdle in clearly distinguishing what is personal and work-related communication, or they risk storing highly personal information. Plus, employees are now leveraging ephemeral messaging apps for work, leaving employers and archiving solutions with little time to quickly and accurately store work-related communication. "It's a big challenge for everyone right now [with] regulatory action and discussion on the litigation side in e-discovery," he said.

Aleshire acknowledged that the Texas amendment doesn't specifically address ephemeral messages and their growing popularity in the government work sector. But he said the measure enshrines required complacency with all public records.

"It's not perfect, but the bottom line is any governmental body that claims it supports transparency to the public should make sure that official conduct on personal devices and accounts are still made available to the public under their public information acts."