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San Francisco Legislators Dodging Public Records Requests With Self-Destructing Text Messages

from the 'this-transparency-will-self-destruct-in-5...-4...' dept

Thu, Mar 17th 2016 10:39am — Tim Cushing

You can call it irony. Or bullshit. But what you can't call it is good government. Cory Weinberg of The Information reports San Francisco legislators [warning: paywalled link] are using one of those infamous tools o' terrorism -- messaging service Telegram -- to dodge open records requests. [Link to a non-paywalled story covering the same thing]

In an interview, a San Francisco government staff member said they were encouraged to use the app by colleagues in City Hall who described it as a way to skirt the city’s public records laws. “That is exactly what it’s being used for,” the staff member said. “It’s caught on.”

[...]

April Veneracion, a top aide to Supervisor Jane Kim and a Telegram user, said one reason officials use the app is because it “self destructs.” She also praised the app’s chat room feature that “allows us to be in touch with each other almost instantaneously.”

Yes, messaging apps are great for instant communications. Self-destructing messages, however, are antithetical to public records laws. Also: possibly illegal. Veneracion loves instachat. Keeping up with her obligations to the public? Not so much.

She said she didn’t know if it violated the city or state’s public records laws. “I should find out though!” she wrote in a message.

Unfortunately, those who are on top of public records laws aren't exactly sure either.

San Francisco’s public records law doesn’t address new forms of electronic communication like encrypted or ephemeral messaging apps, but it “has become an ongoing topic of discussion” on the Board of Supervisors’ Sunshine Ordinance Task Force, said the task force’s administrator Victor Young.

Presumably, these discussions are being preserved. (Not that it matters. Most deliberative discussions fall under public records exemptions.)

Whatever the real reason for using self-destructing messages to conduct government business, it's clear those using Telegram really don't want to discuss their actions.

San Francisco supervisor Aaron Peskin, who has been seen by The Information as active on the app, didn’t return requests for comment. One government official said Supervisor Kim also uses Telegram. She didn’t return requests for comment.

Legislators and government employees aren't allowed to choose which laws to comply with any more than the rest of us. (Theoretically...) Communications between government employees that are subject to open records requests need to be carried out on platforms where they can be searched and archived. This means no use of Telegram, just like it means no setting up your own private email server.

The irony, of course, is that legislators are currently discussing encrypted communications (including encryption bans) and how law enforcement can no longer obtain communications they used to be able to grab with a warrant. Meanwhile, their own communications are being withheld from the public record... using encryption and automatic destruction. Perhaps the public needs to start issuing statements about how they used to get all these text messages with public records requests but can't anymore, thanks to the efforts of the government.

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Filed Under: city council, encryption, public records, record keeping, san francisco, self-destructing, transparency
Companies: telegram

32 Comments

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ANON, 17 Mar 2016 @ 10:47am

And Private Business
IIRC, under Sarbanes Oxley, a publicly traded company MUST preserve all communications, including messaging. So SF politicos are debating the legality of an action That is expressly illegal for a public company.
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- John Fenderson (profile), 17 Mar 2016 @ 11:27am
  
  Re: And Private Business
  I know that every time I've worked for a publicly traded company, all of my work-related communications have been required to take place on company equipment and services, for just this reason. And I'm an engineer, not a suit.
  
  Why should government be held to a lesser standard?
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  - That One Guy (profile), 17 Mar 2016 @ 12:04pm
    
    Re: Re: And Private Business
    Because you have to follow the laws, they don't. It's just common sense, if you're in charge of making or enforcing the laws actually following them becomes purely optional. /poe
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That Anonymous Coward (profile), 17 Mar 2016 @ 10:55am

Perhaps it is time to just call them corrupt and demand investigations.
As they are hiding their communications, one has to assume they have something to hide.
That if they are unwilling to be answerable to those who elected them, they are unfit for office.

Of course defending themselves they will be at a disadvantage as they have made sure to have no evidence available to support their claims.
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- TJGeezer (profile), 17 Mar 2016 @ 1:42pm
  
  Re: Great campaign issue though
  Maybe the critics of secret government would be at a disadvantage in a court of law, but when did the courts ever side with voters against government officials?
  
  OTOH it'd make a great hit piece in a campaign. "Did you vote for Aaron Peskin or Supervisor Kim? Shouldn't you wonder what they're hiding in all those messages they won't put on the record? It's the law that a business has to keep a record. Why isn't it the law for Peskin or Kim?
  
  ...and so forth. Sometimes the good ol' boy back room politicians and bureaucrats just need to be prodded into better behavior. You'll never keep 'em from being venal but shining a light might at least be therapeutic for the suckers who voted for them.
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psiuuuu (profile), 17 Mar 2016 @ 10:56am

"We want encryption with backdoors"
"Well, backdoors for the proletariat, anyway. *Our* communications still get golden keys, right?"

Does CA state law have anything to say on the matter (regarding accessible communications)?

Seems using a self destructing "e-service" would violate the law just as much as self destructing (or shredding) paper copies...

Probably depends on how well intentioned any bills were written - well intentioned would be broad and expansive with particular exemptions. Bad would very particular items that fall under it, which everyone would immediately cease using.
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Anonymous Coward, 17 Mar 2016 @ 11:00am

This activity violates California's "Brown Act"
as in "Ralph M. Brown" Act:

http://www.cacities.org/Resources/Open-Government
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- Anonymous Coward, 18 Mar 2016 @ 12:03am
  
  Re: This activity violates California's "Brown Act"
  So?
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Anonymous Coward, 17 Mar 2016 @ 11:14am

FOIA-proof places.
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Anonymous Coward, 17 Mar 2016 @ 11:21am

The public records laws still exist and apply, they just took action to destroy the records. No different than planning on using a paper shredder after typing a document.
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- DannyB (profile), 17 Mar 2016 @ 1:59pm
  
  Re:
  Wouldn't they have avoided violation of FOIA laws? After all, of no existing records are responsive, there's nothing to respond with.
  
  0 rows returned.
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  - trollificus (profile), 17 Mar 2016 @ 2:18pm
    
    Re: Re:
    Heh. Same thought's not too unusual. Exact. Same. Time? Rare.
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- trollificus (profile), 17 Mar 2016 @ 2:05pm
  
  Re:
  I expect they'll take the IRS "Sry, dog ate our homework. All of it." Defense and expand it to an "Invisible dog ate our records before they were even generated. So...no records." Defense.
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Anonymous Coward, 17 Mar 2016 @ 11:29am

FBI public comment?
What is the Director of the FBI's response to these flagrant subversive acts of 'going dark' in the very State where they are battling Apple to defeat this pernicious behavior which is, as we all know from his prior statements, nothing but a means to avoid valid law enforcement activities.
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- DannyB (profile), 17 Mar 2016 @ 1:57pm
  
  Re: FBI public comment?
  I'm sure the FBI's will strongly react to this.
  
  Hey, San Francisco, can you please show our tech-clueless agents how to use that app? Right now!
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Ninja (profile), 17 Mar 2016 @ 11:33am

And then you see the FBI vs Apple thing... And you shake your head in disgust.
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- DannyB (profile), 17 Mar 2016 @ 1:55pm
  
  Re:
  Actually my 'disgust' has changed into 'not surprised anymore'.
  
  Once corruption and being above the law becomes common place, it trickles down into the rest of society. The entire culture then expects the same kind of palm greasing just to do their job, -- or, to not do it in some cases like looking the other way.
  
  Yes, money does have a trickle down effect.
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Nathan F (profile), 17 Mar 2016 @ 12:11pm

Almost makes me wish that something would go down that would require the FBI to investigate. I wonder what the FBI would be saying when they can't conduct their investigation because the public government records were deleted?
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383bigblock (profile), 17 Mar 2016 @ 12:28pm

Going Dark
OMG.... the friggin government is going dark. What are we going to do.

Dont't government Asshats get tired of irony.
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- trollificus (profile), 17 Mar 2016 @ 2:20pm
  
  Re: Going Dark
  They will certainly never become anemic.
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Anonymous Coward, 17 Mar 2016 @ 1:26pm

It is nice to see a non-paywalled source added. This is usually what I do when I run into a paywall. Within hours normally, the same or near same article will be out using other sources. I also do the same for those sites who demand you unblock their ads. Other than that I ignore both paywalled and ad demanding sites.
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kenichi tanaka (profile), 17 Mar 2016 @ 1:43pm

I must be missing something because government isn't allowed to destroy any documents considering that every memo, document, file, email or whatever is supposed to be saved. It doesn't matter how any laws were written. Now that this is in the open, expect these officials in San Francisco to come under fire for destroying government documents. I respect that the Department of Justice is going to get involved in this one
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- That One Guy (profile), 18 Mar 2016 @ 2:06am
  
  Re:
  Oh but there's where the trick comes into play, they aren't destroying anything you see, the service is. Why it's just a pure coincidence that the service they are using is specifically designed not to leave records, they have nothing to do with the deletion of records at all, and are completely innocent in the matter.
  
  And if any of the above sounds reasonable, congrats, you've got a promising career in politics!
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DannyB (profile), 17 Mar 2016 @ 1:52pm

You have it wrong about picking and choosing laws
The legislators and government officials ARE allowed to pick and choose which laws they want to obey. That permission may not be written down anywhere. But it is common practice. And it will get worse before it gets better. If it gets better.

When I say "allowed", I don't mean morally right or anything like that. I mean they do it, they get away with it, thus they are 'allowed' to do it. Nobody disallows them.
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trollificus (profile), 17 Mar 2016 @ 3:17pm

It's easy to be cynical. It's a laborious task to be as widely and darkly cynical as is necessary to accurately model the real world.

TechDirt readership gets top marks for not being surprised that this is going on with the progressive "good guys". Not one single comment on the lines of "This is what I'd expect from the Rethuglicans!" Good. Cynical and informed enough to realize that there are no good guys in that game.

(But that's the value to politicians of emotional-but-irrelevant "wedge issues". To make people feel strong identification with one as opposed to another of two politicians, when both would, if in power, prefer rule and self-interest over "leadership" or "public service".)
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Coyne Tibbets (profile), 17 Mar 2016 @ 8:57pm

My FOIA
My FOIA from San Francisco came in an envelope. When I opened it, the contents burst into flame.

Then some chap with reddish skin, horns and a tail suddenly appeared and informed me that I had now received a hell of a response for my FOIA request.

Then he confiscated the ashes and disappeared.
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Whisky, 17 Mar 2016 @ 10:53pm

"All animals are equal, but some animals are more equal than others".
Wonder if the NSA and the FBI will investigate this potential terrorists, as they like to call anyone "going dark" by using encryption.
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nasch (profile), 18 Mar 2016 @ 7:43am

Communications
Communications between government employees that are subject to open records requests need to be carried out on platforms where they can be searched and archived.

Does that mean they're not allowed to have those conversations in person or on the phone?
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- John Fenderson (profile), 20 Mar 2016 @ 11:22am
  
  Re: Communications
  IIUC, "deliberative" communications don't have to be recorded or disclosed. Those are routine communications where no policy decisions are being made. But I could be wrong.
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That Other Guy, 18 Mar 2016 @ 10:13am

Another Problem
One other problem is that Telegram isn't secure. They use some homebrew encryption. (If anything, Threema or Signal would have been valid options.)
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albert, 18 Mar 2016 @ 2:52pm

photograph the messages
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Anonymous Coward, 3 Mar 2017 @ 4:17pm

[Redacted] due to [Redacted]
State secrets were invented to solve the FOIA problem.

Simply mark everything classified, and it disappears for at least 25 years.
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