PRC's policy on state cellphone texting hazy

Taxpayers footing the bill for the cellphones of Public Regulation Commission employees can't see the text messages on those phones unless the state can get a subpoena.

That's the word from Verizon wireless after The New Mexican requested text messages from the state-issued cellphones of Commissioner Jerome Block Jr. and others at the regulatory panel.

"I don't have access to the actual text message content a user is sending or receiving on their mobile number," Heidi Jackson, of Verizon's Business and Government Customer Operations, wrote to the Department of Information Technology, which forwarded the newspaper's request to the phone company.

"If you have an agency that needs this information we will need a subpoena in order to provide this information," she wrote.

State rules regarding the New Mexico State Records Center and Archives views a text as an electronic message subject to retention by an agency if it includes business matters. If the subject is not related to work, the message can be deleted.

It is up to each agency to retain records, according to state statute.

But the Public Regulation Commission has no policy requiring employees to archive or preserve text messages of any kind on taxpayer-funded cellphones.

"Our cellphone policy is pretty vanilla," PRC Chief of Staff Johnny Montoya said Friday. "It doesn't refer specifically to anything about text messages."

Enforcing a policy that required retention could prove tough, he said.

"How would I discipline an employee for not retaining those?"

Still, he said, he is willing to look into the issue further and see if the texts can be made public.

"If there is a way to get access, I'm all for that," he said.

However, he said most employees understand that anything done on state equipment is subject to public scrutiny.

"[Former Gov.] Bruce King used to say 'don't ever put anything in email that you don't want to end up on the front page of The New Mexican," he said.

Sources say some of the texts on Block's phone could possibly help shed some light on questions surrounding the commissioner, who is under scrutiny for spending on state gas cards. Block is also facing questions in a stolen car case and has missed about a third of PRC meetings so far this year. He has admitted a prescription drug addiction but does not plan to resign.

Sarah Welsh, executive director of the New Mexico Foundation for Open Government, said the lack of text message retention is something that can be dealt with in policy.

"Employees who are given devices for communicating about public business should understand that messages sent on the devices are public records," she said.

"There should be a mechanism for forwarding the messages automatically to a public server, and/or an explicit requirement to store messages and produce them upon request," she said, noting that email-use policies already have similar provisions.

"The agency shouldn't have to get a subpoena to access what are essentially its own records."

At the same time, though, some agencies have policies that allow for limited personal use of a cellphone or email.

Welsh said in those cases, an employee may have an expectation of privacy for personal messages.

The state's Department of Information Technology doesn't have a policy on retaining text messages. But if it had an infrastructure in place, possible policies might include requiring all employees with state phones to export messages to a database on a regular basis or reaching an agreement with Verizon to export all messages to a state-owned database, a spokesman said.

States across the country approach text message retention differently.

In North Carolina, for example, texts are not required to be kept, because they are considered records of "short-term value," while in Florida they are required to be kept for various lengths, depending on the content.

Meanwhile, the PRC is still without an email retention policy, after The New Mexican reported in June 2010 that the agency was going to revamp it.

At the time, the then-administrative services division director said no one was following it.

The 2009 policy calls for employees of the regulatory agency to sort their own emails and determine what is public. Those public records then must be forwarded to an address for retention. But nothing was being sent there.

The issue came up after The New Mexican requested the emails of former Insurance Superintendent Mo Chavez, who left the job in the wake of criticism over approval of a hike in health insurance premiums for some 40,000 individual customers of Blue Cross Blue Shield.

Chavez at the time said he has nothing to hide and cleaned his inbox at the direction of the agency's information technology staff.

Montoya said Friday that the PRC is looking into buying more server space to have room to archive emails, and a policy on doing so would come after that.