School district’s use of Chat raises open records concerns

(TNS) — Pennsbury School District officials in Chester County are using a chat program for official business that automatically deletes messages after just 24 hours, potentially violating Pennsylvania’s public records laws.

Pennsbury spokeswoman Jennifer Neal emailed parent Tim Daly in response to a right-to-know request. She confirmed that employees use Google Chat.

“Google Chat is available to all Pennsbury employees through Google Workspace. Please note that messages sent through this platform are stored for 24 hours. In addition, the use of chat is absolutely optional. Employees are not obligated to use it as part of their communications,” Neal wrote.

According to Google’s website, “with Google Chat, you can delete messages, hide conversations, and leave group chats to manage your privacy.”

This is causing concern among citizens and journalists, who are filing rights of inquiry to find out what the district is doing behind closed doors. Unlike e-mails, which are stored on a server, chat messages are potentially unavailable for public inspection and review.

The Pennsylvania School Boards Association recommends keeping emails for three years.

Melissa Melewski, media law counsel for the Pennsylvania News Media Association, expressed concern about Pennsbury’s practice, especially when used by elected officials such as school board members.

“Using an ephemeral messaging app raises issues not only with the Right to Know Act, but with compliance with the Sunshine Act,” Melewski said. “The Sunshine Act requires that quorum discussions of agency business occur only in open meetings. The messaging app would allow these discussions to take place outside of public meetings, in violation of the law, without evidence, making public accountability impossible.

“At a minimum, this behavior harms public trust and, depending on how the app is used, may also violate the law. The school board must reconsider its behavior and put both the law and transparency at the forefront of its public services. “

Board President Dr. Joan Steer declined to respond to DVJournal’s inquiries about the use of Google Chat by board members conducting official business. However, the app is part of his Google Workspace through District.

And while administrators who use ephemeral applications won’t violate the Sunshine Act, “from a public policy perspective, deliberately avoiding the creation of a record is terrible public policy,” Melewski said. “Because the effect is that at some point in the future there will be no accountability.”

Michigan passed a law that “prohibits public officials from using these kinds of ephemeral apps and communication devices to talk about public business because they understand that transparency and accountability is based on access, and you can’t have access to something that doesn’t exist,” Melevsky said. . Other states, including Texas and Colorado, are also looking into the issue.

Residents can speak about the problem at meetings and before municipal and state elected officials, she said.

The issue has also been raised in antitrust lawsuits against Google itself, in which the company appears to have urged its employees to use an app instead of email.

“Googlers moved communication from email to ‘chat’ where … Google did not save documents by default,” writes Internet privacy and technology expert Ben Edelman in an overview of the issue. “In any 1:1 chat, even between employees whose business responsibilities required document retention, Google’s internal chat tool defaulted to not saving the material, causing it to be deleted and not available at trial.”

Attorney Chadwick Schnee, who often litigates open records cases, said government agencies “as a best practice absolutely should keep records of their communications for transparency and accountability purposes.”

“The question of whether there is administrative value is somewhat in the eye of the beholder, and if an agency sets up automatic deletion of messages (via Signal, Google Chat, or other means), the agency doesn’t even bother to do any analysis as to whether retain such communications as they relate to the agency’s operations. In the context of a legal proceeding, this practice can lead to the taint of evidence, as relevant notifications can be automatic. removed during trial.”

Schnee added: “Setting communications between public officials to automatically delete (especially after 24 hours) absolutely prevents the public from seeing what their elected officials are doing and holding them accountable.

“It’s probably something that, frankly, as technology advances, it becomes easier and easier to use that kind of technology to avoid creating records that are supposed to provide accountability. This is really a matter of state policy,” said Melevsky.

State Sen. Jarrett Coleman (R-Bucks/Lehigh) told DVJournal that he was aware of the chat issue and believes it may be ready for legislation.

“We all know the only reason you use it is to delete your messages,” Coleman said. — So that people don’t see what you’re saying.

Coleman said he is working with state Rep.-elect Jamie Walsh (R-Luzerne) to review existing laws and determine whether new legislation is needed to address the issue and whether (Google Chat) would be appropriate for destroying public records.”

“Again, my immediate reaction (to use this) is the only reason you don’t want people to see what you’re saying in these messages. It’s certainly not transparent,” Coleman said. “Removal within 24 hours is subject to destruction of public records. Would this be an acceptable method of communication for elected officials? It’s definitely suspicious.”