When Detroit Mayor Kwame Kilpatrick began having an affair with his chief of staff, Christine Beatty, he probably never expected their explicit text messages to be published in the Detroit Free Press. The Free Press published some of those messages in January 2008, unfolding a scandal that has dominated Detroit headlines. Calls for Kilpatrick’s resignation have accompanied 12 official charges against him and Beatty of perjury, obstruction of justice, misconduct and conspiracy, filed by Wayne County prosecutor Kym Worthy on March 24.
The Kilpatrick story has brought to light a freedom-of-information issue courts have not had to address in the past. While government officials communicate electronically more frequently and through more media than ever before, e-mails, text messages, chat rooms, instant messages and video conferences all remain virtually unmentioned in FOI laws.
Text messages have exploded in popularity in recent years. The wireless industry’s trade association, CTIA, estimates more than 48 billion text messages are sent each month. Text messages have also become a flashpoint for discussion of FOI laws because they can be sent from either personal or state-owned cellular phones or beepers and may be personal or business-related in nature. The line between personal and public business can easily be blurred for government officials.
“Many states specifically provide that e-mails are public records. If e-mail on a work computer is a public record, then there is a good argument that a text message sent from a work phone also should be considered a public record,” said David Hudson, First Amendment scholar at the First Amendment Center. “I think it is a difficult issue because it is relatively new and many people regard text messages as private communications.”