Mayor Marty Walsh admitted to WCVB’s Mike Beaudet Thursday that he deleted text messages from his taxpayer-financed phone—text messages that, when requested via public records request by both the Globe and Beaudet’s journalism class at Northeastern University, his office twice said didn’t exist. Now, the mayor and his Law Department have changed their tune, admitting the text messages existed and declaring that all text messages on his work phone are public record and up for grabs.
The problem is, Walsh’s text messages didn’t magically become public records with a wave of the Law Department’s wand. The texts Walsh deleted were always public records. Destroying them is illegal under the state public records law, which calls for all electronic correspondence to be retained for at least two years, even if it contains no “informational or evidential value.”
The Mayor’s Office says Walsh never intended to hide anything by deleting them, and pledges full cooperation going forward.
“The Mayor does not conduct substantive city business over text message and he had always routinely cleaned out the text messages on his cell phone after reading them over habit,” spokesperson Laura Oggeri says. “The majority of his communications are done in-person or by speaking on the phone.”
“Either way, there’s still a requirement that public messages that contain public business be retained,” says Pam Wilmot, executive director of Common Cause Massachusetts, which advocates for open records.
Walsh’s texts came into focus last summer, as the debate over the Boston 2024 Olympic bid reached its boiling point. In a July 31 email, a city lawyer denied the Globe’s request for text messages between Walsh and his chief of staff Dan Koh regarding the Olympics on the grounds that City Hall lacked the “technical capacity” to make copies of them. (Beaudet received a similar dismissal.) Commonwealth magazine deftly lampooned the administration’s apparent inability to take a screenshot of text message in a screenshot of a text message.
In an August 3 ruling, State Supervisor of Records Shawn Williams slapped City Hall for its handling of Boston 2024 records, finding that city officials had erred in not initially including emails while completing requests. “‘Public records’ is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption,” Williams wrote in the ruling, obtained by Boston.
Oggeri says the Law Department gave a presentation in conjunction with the Department of Innovation and Technology on August 31. “The goal of this meeting was to remind all department heads of their obligation as records custodians. The Mayor also attended this meeting and gave his full support to this effort,” she says.
According to Galvin’s office, all municipal agencies must obtain written permission from the Supervisor of Records before destroying public records. Walsh did not receive permission from Williams to delete his text messages, and Wilmot believes this constitutes a violation of the law.
“These are important if there were ever a criminal investigation [or] if there was a public records request into government function. We have these laws for a reason, and that reason is the proper functioning of a democratic government,” Wilmot says. “Sometimes, public officials are not always aware, even though perhaps they should be. They don’t think before they do things. That’s one of the reasons we have the media.”
The deletion of electronic public records has long been a stumbling block for City Hall. Following a five-week investigation, Secretary of State Bill Galvin ruled in 2009 that Michael Kineavy, a top aide to the late Mayor Tom Menino, had improperly deleted thousands of emails over five years. The city hired a forensics firm and recovered roughly 10,000 emails, before Galvin hired another forensics firm and dug up an additional 48,000 documents. Then-Attorney General Martha Coakley also conducted an investigation.
“What we know now was there was a deletion of the e-mails,” Coakley told the Globe at the time. “But does that translate to a willful, intentional skirting of the law and the spirit and the letter of the law?”
A spokesperson for Attorney General Maura Healey declined to comment on the possibility of a similar investigation into the deletion of Walsh’s text messages. Wilmot says she cannot recall an instance when an elected official in Massachusetts had been punished for the destruction of public records under the current toothless statute.
“Even the minimum fines in the law have never been imposed,” she says.
Walsh’s pivot places him in stark contrast to Gov. Charlie Baker, who claims exemption from the purview of public records law under the Lambert decision, a 1997 Supreme Judicial Court ruling that Paul Cellucci, Mitt Romney, and Deval Patrick have all used to rebuff requests. When asked by Beaudet if he believes his text messages should be public record, Baker said, “We’ll comply with the law, whatever the law says,” and later, “We’ve released the data we believe we are required and obligated to release.”
“Governor Baker was pleased to institute new public records reform policies for the executive branch to make state government more transparent and expects all offices, including his own, to fully comply with the law and all applicable public record procedures,” Baker spokesperson Billy Pittman tells Boston.
Going forward, Oggeri says City Hall is “exploring a system to retain text messages and to provide such in the same manner as it does other records, such as emails.” The process is ongoing and has not been finalized.
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