Dark Clouds: Can Government Agencies Evade Public-Records Laws by Storing Documents in Privately Owned Digital Portals?

Abstract

This article examines government officials using privately owned communication portals to exchange messages, asserting that documents do not become public records if government agencies avoid taking possession of them. This may be defensible under the literal wording of some state public records statutes, but it is inconsistent with the remedial good-government purposes of those laws. The use of private “cloud portals” raises tricky practical problems, since a private custodian may be beyond the reach of state FOI statutes or records-retention requirements. For this reason, the author recommends, states should consider banning public employees from conducting business on platforms that are not built for retaining and producing their communications.