DV Journal

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.

In response to Delaware Valley Journal’s reporting on school officials using messaging apps that erase messages to communicate with each other, the state Senate has called a hearing to review the situation.

The concern is that these officials are using the app to conduct official business and avoid Right-To-Know requirements, thereby keeping their communications secret from the public.

The Senate’s Intergovernmental Operations Committee sent out notices to potential witnesses of a tentative date of March 24 for the hearing.

“We need to understand whether or not the use of these apps violates current law. The hearing will explore how the apps are being used and hopefully generate some conversations about the issue among my colleagues,” said state Sen. Jarrett Coleman (R-Bucks/Lehigh), who chairs that committee.

DVJournal reported in December that the Pennsbury School District was using Google Chat, automatically set to delete messages after 24 hours. A follow-up report revealed Central Bucks School District Democratic board members were using Signal, which can be set to delete messages in 24 hours, to communicate with each other.

Why is this an issue?

Parents and community members have a right to learn about what officials are doing behind closed doors. If their communications disappear before Right-to-Know requests can be sent, then those requests become moot, and officials can carry out public business in secret.

The messaging apps may also violate the Sunshine Act, allowing a quorum of officials to discuss official business behind the public’s back.  Parents and community members would have to take their word that they were following the law.

Melissa Melewsky, the media law counsel for the Pennsylvania NewsMedia Association, is concerned. She worries about school board members using Google Chat, Signal, or similar messaging systems.

“Using an ephemeral messaging app raises not only Right-to-Know Law issues but Sunshine Act compliance issues as well,” Melewsky told DVJournal. “The Sunshine Act requires that quorum deliberations of agency business take place only at a public meeting. The messaging app would allow those discussions to take place outside of public meetings, in violation of the law, without evidence, making public accountability impossible. At a minimum, this conduct harms the public trust, and depending on how the app is used, it may also violate the law.  The school board should reconsider its conduct and put both the law and transparency at the forefront of their public service.”

The Central Bucks Signal use came to light through a deposition given by former school board President Karen Smith in a lawsuit brought by residents John Callaghan and Karen Vecchione. Smith revealed the Democratic members of the board used Signal to communicate with other Democrats on the board. However, she claimed she did not use Signal for “agency business” or when there was a quorum.

“We use our email in cases where we believe something should be part of the record,” Smith told the plaintiff’s lawyer, J. Chadwick Schnee, during a deposition.

DVJournal has learned that Pennsbury School District officials use Google Chat–which is set to automatically delete messages after 24 hours–to talk with one another.

Why does that matter?

Well, people who file right-to-requests to find out what the district is doing behind closed doors would be unable to access those messages, compared to emails. The Pennsylvania School Boards Association recommends that emails be kept for three years.

Pennsbury spokesperson Jennifer Neill emailed parent Tim Daly in response to a right-to-know request. She confirmed that staff members do use Google Chat.

“Google Chat is available to all Pennsbury staff members through Google Workspace. Please note that messages sent via this platform are retained for 24 hours. Additionally, the use of Chat is completely optional. Staff members are not required to use it as part of their communications,” Neill wrote.

Melissa Melewsky, the media law counsel for the Pennsylvania NewsMedia Association was perturbed. She is especially concerned about school board members using Google Chat or similar messaging systems.

“Using an ephemeral messaging app raises not only Right-to-Know Law issues but Sunshine Act compliance issues as well,” said Melewsky. “The Sunshine Act requires that quorum deliberations of agency business take place only at a public meeting. The messaging app would allow those discussions to take place outside of public meetings, in violation of the law, without evidence, making public accountability impossible. At a minimum, this conduct harms the public trust, and depending on how the app is used, it may also violate the law.  The school board should reconsider its conduct and put both the law and transparency at the forefront of their public service.”

Board President Dr. Joanne Steere did not respond when DV Journal asked if board members were using Google Chat. However, the app is part of their Google Workspace through the district.

And while administrators using ephemeral apps would not violate the Sunshine Act, “from a public policy perspective, it’s a terrible public policy to intentionally avoid creating a record,” said Melewsky. “Because the effect is it doesn’t allow for accountability at some point down the road.”

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

Residents can speak out at meetings and to their municipal and state elected officials about this problem, she said.

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

“ The question of whether there is administrative value is, to a certain extent, in the eye of the beholder, and, if an agency is setting communications to automatically delete [whether through Signal, Google Chat or some other means], the agency is not even bothering to perform any kind of analysis as to whether such communications should be retained because it pertains to agency business. In the context of litigation, such a practice could lead to the spoilation of evidence because relevant communications could be automatically deleted during the course of litigation.”

Schnee added, “Setting communications among public officials to automatically delete [especially in 24 hours] absolutely frustrates the ability of the public to see what their elected officials are doing and to hold them accountable.

“This is probably something that should, to be quite honest, as technology advances, it becomes easier and easier to use this kind of technology to avoid creating the records that should provide accountability. It’s really a public policy question,” said Melewsky.

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

“We all know the only reason you use it is so your messages are deleted,” said Coleman. “So people can’t see what you’re saying.”

Coleman said he’s working with newly elected state Rep. Jamie Walsh (R-Luzerne) to review current laws and determine whether new legislation “needs to be brought to address this, whether [Google Chat] would fit destruction of public records.”

“Again, my immediate reaction [to use it] is the only reason you don’t want people to see what you’re saying in those messages. It’s certainly not transparent,” said Coleman.  “The 24-hour deletion would fall under the destruction of public records.  Is that going to be an acceptable method of communication for elected officials? That certainly is suspect.”