Long before the Trump administration made headlines by using the Signal app to send sensitive military data, Bucks County school officials were using similar technology to send auto-deleting messages about official government operations.
DVJournal broke the story in December, and this week the state Senate held a hearing on school board directors communicating via message apps, including Signal, where text messages quickly disappear.
Senators on the Intergovernmental Operations Committee, chaired by Sen. Jarrett Coleman (R-Bucks/Lehigh), heard testimony about the practice, which thwarts the public’s efforts to gain understanding by circumventing right-to-know requests.
The Pennsylvania Association of School Boards and the Central Bucks School Board president declined to give testimony, Coleman said.
However, Central Bucks was at the forefront of the discussions.
DVJournal first reported that the Pennsbury School District was using Google Chat, automatically set to delete messages after 24 hours. A follow-up report revealed Democrats on the Central Bucks School District board were using Signal, which can be set to delete messages in 24 hours, to communicate with each other.
Pennsylvania NewsMedia Association lawyer Melissa Melewsky gets calls from journalists who are “learning about public officials using ephemeral communication apps,” she said. The Sunshine Act requires that deliberation of agency business can only take place at a public meeting, she said. If they are using the devices, it not only violates the Sunshine Act but also “erodes public trust,” she said.
‘There’s a case pending in Central Bucks where school board members discussed agency business amongst a quorum using an ephemeral messaging app where records delete automatically,” said Melewsky. “And once that record deletes, it can’t be recaptured automatically.”
The Right to Know law presumes records are public. But if a record no longer exists, the right-to-know law is no help, she explained. Pennsylvania’s current right-to-know law does not include ephemeral messages, she said.
“There is no accountability without access,” said Melewsky. “So, here we have no access.”
Lawyer Joshua Bonn, who practices transparency law, said employees are given significant discretion to decide when to retain records.
Bonn said a prosecutor in the Philadelphia District Attorney’s Office was communicating with a supervising grand jury judge regarding the high-profile Jerry Sandusky case. Those emails, critical of former Attorney General Kathleen Kane’s investigation, were deleted “during the pendency of the litigation” due to a faulty retention policy.
“If employees are using ephemeral messaging apps, there’s no discretion,” said Bonn. He suggested the legislature pass a law to maintain those records.
The practice of using self-deleting messaging was discovered thanks to a right-to-know request from Lower Makefield resident Tim Daly, who testified before the committee on Monday.
Minority Leader Sen. Jay Costa (D-Allegheny) objected to his testimony, saying Daly was not an expert and claiming he had made “derogatory posts” on social media about other members and “making statements about the members’ spouse and daughter.”
“He should not be granted this privilege (to testify). I think it’s reprehensible that a person can come and talk about our members’ spouses and children, and then come and testify before this body,” Costa said.
When Coleman allowed Daly to testify, Costa left the meeting. Daly later said he had criticized Sen. Steve Santarsiero (D-Bucks), on social media, saying Santarsiero had used his position to benefit his wife and daughter.
Daly, a digital marketing executive with 28 years experience, told the committee he was an expert on the apps being discussed and had filed 50 appeals of denied right-to-know requests to the Office of Open Records since becoming involved due to school closures during the COVID-19 pandemic.
In the last 18 months, he’s found officials’ emails no longer carry long strings of conversation, Daly said. School district and township officials have recognized that the public now has access to information, and he believes they’re taking steps to circumvent transparency.
In one example, a school board member was observed texting with another board member multiple times during a meeting. Daly’s right to know request for those texts was denied “despite video and photographic evidence the texting messages were happening in the middle of an open meeting.”
“Something is broken,” said Daly. “We need to improve the process to ensure proper transparency in government.”
Liz Wagenseller, executive director of the Office of Open Records, which hears right-to-know appeals, said, “The courts have said it doesn’t matter where you’re conducting agency business. If you’re conducting agency business, it may be subject to the Right-to-Know law.”
She’s also concerned about apps that automatically delete messages.
Sen. Vincent Hughes (D-Philadelphia) asked Melewsky and Bonn for suggestions.
Some states prohibit government business being discussed on non-governmental accounts, said Melewsky. Others have addressed it through the record retention process. Bonn suggested setting a time period for agencies to retain public records.
Coleman said transparency holds people accountable.
“Maybe the dirty little secret about these messaging apps is the only reason you have them is because you don’t want people to see what you’re saying,” said Coleman.
For government business, “auto-delete is bad policy,” said Melewsky.
