When Gov. Steve Bullock attempted a final negotiation with Republicans to pass a bill funding infrastructure projects in the final days of the Legislature, he sent a text message.

“Speaker, Bullock here. You have some time this am to talk?” the Democrat tapped into his phone at 9:17 a.m. on Monday, April 24.

At 8:43 a.m. that Friday, Speaker of the House Austin Knudsen sent a text back.

“Mr. Governor- we are not accepting your deal,” he wrote.

Conversations and decisions about state policy increasingly are conducted by texts zinging between the governor, legislators, lobbyists and staff. But state policies do not provide specific guidance on how to manage and maintain text messages as records that state law requires to be preserved.

In numerous interviews this year, many elected officials expressed skepticism about whether text messages — and other digital communications like emails and Facebook direct messages — should be public record and if it is worth the trouble to save them even temporarily for public inspection. Open government advocates argue elected leaders have a responsibility to modernize records-keeping strategies to remain transparent in a digital age.

“It strengthens the public’s right to access information,” Sunlight Foundation Executive Director John Wonderlich said. “That’s how we have trust in the government and how we ensure our elections are not just a beauty contest, but that they are about what’s actually happening.”

It is a debate sure to grow as leaders use the convenience of smart phones to communicate about public business and as more members of the public and media request access to digital messages under open government laws.

Some states discourage elected officials from sending text messages about public business, seeing the medium as insecure or difficult to retain. Others require those texts to be sent from state-owned phones, which include software or contracts with service providers to save messages. Most, like Montana, do not have a text-specific policy and no strategy for recovering them in response to a request. That often results in public records being destroyed too soon and leaves states vulnerable to lawsuits for breaking open government laws.

The failure of Bullock’s office to complete a recent records request highlights the challenges state officials face and attitudes about reform. Some messages that were released provide a sense of what public information is being destroyed.

On May 1, the Monday after the Legislature adjourned, Lee Newspapers requested text messages from the final three weeks of the session between any legislator and Bullock or Budget Director Dan Villa. State officials, including the governor, had referenced text messages they received when discussing bills throughout the session but it was unclear to what extent the technology was used to finalize critical public policy decisions.

Several major details of the state budget were negotiated in those final days. The governor, Democrats and some lobbyists focused extensively on trying to pick up Republican votes to support an infrastructure bonding bill to fund water, sewer and school facility projects statewide.

Villa, in particular, worked closely with a small group of legislators to create a plan for when the state should trigger additional spending cuts if revenues did not match projections. Earlier this summer, those extra cuts took effect. The budgets of numerous state agencies were reduced, about 20 people lost their jobs, and $30 million was taken out of the fund for fighting wildfires to plug holes elsewhere in the state budget.

In late July, the governor’s office released some of the requested records. Some texts were recovered from the governor’s phone, but not Villa’s.

When Bullock Senior Adviser Eric Stern was asked by Lee Newspapers what the governor’s office would do to recover text messages that Villa deleted from his phone but that likely are available through his cell service provider, he replied: “We will not ask Mr. Villa to do that.  Nor would we make him go to the garbage dump to retrieve a sticky note he might have thrown away, containing a short message.”

Advocates for government transparency argue text messages frequently must be preserved under state laws and can show important conversations of public relevance.

“If you were to write a detailed budget memo with instructions about negotiations on Post-it notes, I expect they would still be official records,”  Wonderlich said, extending Stern’s comparison of text messages to sticky notes. “Just because the piece of paper is smaller and there is a sticky part of it, doesn’t create an exemption from having to provide public access. That’s an interesting image they’re trying to invoke, but I don’t think it actually gets them out of hot water.”

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Dan Villa

Villa

Montana’s public records law is considered one of the strongest in the nation because a public record is defined by its content, not the format in which its kept.

Records documenting critical discussions and decisions must be preserved the longest, some permanently, while “transitory communications” must be kept for at least 30 days under state policy. Minor communications unrelated to state business, such as asking a colleague if they want to grab lunch, may be deleted sooner. The only exemptions to public disclosure are for some confidential legal records and sensitive personal information, such as health records.

Lee Newspapers previously reported that Montana frequently fails to retain some digital records, like emails, in accordance with state law. There is no enforcement mechanism to encourage compliance or punish bad actors. Requesters have only one recourse if records are not released or have been destroyed: File a lawsuit.

This year, the Legislature set aside $100,000 to defend Sen. Jennifer Fielder, R-Thompson Falls, after she and the state were sued for failing to release some of her emails after more than a year had passed since being requested by the nonprofit Campaign for Accountability. Part of the debate centered on whether emails sent from her private account about state business must be released.

To retrieve Bullock’s text messages, a staff member scrolled through his cell phone, typing every missive with a legislator or Villa into a spreadsheet. An attorney later reviewed those messages and deleted ones that were deemed to be personal and not public. Several senior members of the governor’s staff did not answer when asked how many messages were deleted and what kind of topics were considered private. They did confirm that no effort was made to recover messages that might have been deleted from the phone, but that would still be available from the service provider.

Bullock sent or received at least 86 text messages from April 10-30, according to the released information.

Some are perfunctory: coordinating meetings or requesting status updates on bills. Others contain the kind of information that require at least one month’s preservation under Montana’s public records laws: conversations about which bills to offer up in last-minute deals, which legislators should be targeted by lobbyist allies and which parts of the state budget could be cut.

“Just got word from League of Cities and Towns that Villa told them to stand down and NOT work the infrastructure bill. Am I missing something here? Isn't this a time for more pressure, not less?” House Minority Leader Jenny Eck, D-Helena, texted Bullock at 11:02 a.m. in the final week of the session as debate over the bonding bill intensified.

“That's silly,” Bullock replied.

“Ok, they say they will unleash their machine as soon as they get a green light. So I'll tell them they should have at it,” Eck said, referencing the league waiting for direction from the governor’s office.

The next night, just hours before what was expected to be the final vote on the infrastructure bonding bill, Bullock asked Villa, “Learn anything?”

The budget director replied: “(Montana School Board Association) and Taylor Brown is working Vinton, (Department of Justice) working Mortenson, Richland (County) and (Montana Association of Counties) working Staffanson, Boulder working to hold Wagoner, Taylor holding Lavin, Essman on Jones, Cascade Browning/Kalyzach and Fitzpatrick working Trebas, Mandeville is got, Miles City working Holmlund.” (For clarity, some punctuation was added and acronyms were converted to organization’s full names.)

Other messages provide a deeper look at Capitol relationships that drive policy and the critical information exchange used to craft strategy.

“I'm currently working on reviving the market source bill,” Rep. Rob Cook texted at 7:38 a.m. April 13. He is a moderate Republican from Conrad who frustrates some conservative members of the party for brokering deals with the Democrat governor. “The damn thing dies everywhere it lands.”

“Everything seems to be,” Bullock replied.

“It's normal during this phase. Extreme fatigue and inordinate angst. On the positive side, infrastructure sounds positive with the buildings in.”

“Who's saying that?”

“Republicans that formerly opposed,” Cook said. “They fear another failure more than they dislike any particular project.”

The infrastructure bonding bill ultimately died a few votes short of the needed two-thirds majority.

The public does not know what Villa said by text as he worked deals in the session’s final days. The former legislator, whose budget office reviews every bill for spending impact, was the governor’s lead negotiator on several priority proposals. That influence is summarized neatly in one exchange with the governor the night of April 10.

“Just talked to (Senate Finance Chairman) Llew (Jones),” Villa texted Bullock. “He's ready to deal. I walked through how cash flow works based on fund balance, etc. He's already thinking of ways to do trigger cuts.”

“That's a good sign,” the governor replied. “Did he talk infrastructure. Or any revenue(?)”

“The East wants to add oil boom options for themselves. I said maybe if we got some accommodations too but we're talking tomorrow. He said it sounded find but talk to Cook since its his bill. Cigs, etc dead.”

Asked why the governor’s office would not attempt to recover Villa’s messages and why he was not directed to preserve them when the request was made May 1, Stern told Lee Newspapers on July 28: “I am not aware of any Montana state agency that requires state employees to retain their text messages on personal devices. Text messages are transitory and ephemeral communications with a high expectation of privacy for the sender and receiver, and they occur almost always on personal devices."

In fact, existing state law and records retention policy requires records to be retained for different lengths based on their content, regardless of format. Lee Newspapers submitted its request three days after the session ended, well before end of the monthlong retention period for transitory communications.

Wonderlich wondered “if the deletion (of Villa's text messages) was in response to the request.”

The office of Secretary of State Corey Stapleton, a Republican, is charged with training agencies about records retention. He previously suggested that improving the retention of emails or text messages would only cause state leaders to find other ways to communicate privately — even if it broke the spirit, and perhaps the letter, of Montana’s open government laws.

The same sentiment was expressed by several state legislators who were interviewed this spring. The effort to limit access to some policy discussions was seen in other strategies at the Legislature.

In the final days of the session, a small group of legislators planned to meet with Villa to debate the details of the budget cuts eventually made this summer. They met in a closet-sized room in the basement of the Montana Capitol, and unsuccessfully tried to avoid reporters for a meeting that might have qualified as a public meeting under state law.

Similarly, Bullock summoned legislative leaders to his office for an early-morning meeting April 25, hours after telling reporters the day before that he had no plans to meet with legislators, but would tell them if he did. When reporters saw legislators entering his office, they followed to watch negotiations. The next time the governor invited legislative leaders to meet with him before the Legislature started for the day, the door was kept closed and locked, with staff only allowing in invited members.

Wonderlich questioned Stern’s suggestion that text messages are not public.

“They are not taking a principled position on how far the freedom of information laws reach. The position is one of political convenience. Messages they don’t want to release, they are finding a way to either deny or are saying it’s beyond the scope of what they have to respond to,” he said. “If text messages are ‘ephemeral,’ then maybe they shouldn’t be using them to negotiate the state budget. If they are used for that kind of communication, it suggests they are official records and not some ephemeral Post-it note.”

Without the release of the records, it is impossible to know to what extent texting was used in budget negotiations.

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Lee Newspapers state reporter Jayme Fraser emphasizes in investigative journalism and data reporting. She travels all over Montana in her work.

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