Pennsbury spokesperson Jennifer Neill emailed parent Tim Daly in response to a right-to-know request. She confirmed staff members are using 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.
According to the Google website, "In Google Chat, you can delete messages, hide conversations, and leave group chats to manage your privacy."
That is a concern for citizens and journalists who file right-to-requests to find out what the district is doing behind closed doors. Unlike emails, which are stored on a server, chat messages would potentially be unavailable for public scrutiny and review.
The Pennsylvania School Boards Association recommends emails be kept for three years.
Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, expressed concern about Pennsbury's practice, particularly when used by elected officials like school board members.
"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 declined to respond to inquiries from DVJournal regarding the use of Google Chat by board members conducting official business. However, the app is part of its 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 the problem, she said.
The issue has also been raised in antitrust lawsuits targeting Google itself, in which the company appears to have urged employees to use the app rather than email.
"Google employees moved communications out of email and into 'chat' where ... Google did not preserve documents by default," writes internet privacy and tech expert Ben Edelman in a review of the issue. "In any 1:1 chat, even among employees whose business responsibilities made them subject to document preservation obligations, Google's internal chat tool defaulted to not saving materials—thereby causing them to be deleted and not provided in litigation."
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 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."
© 2024 Delaware Valley Journal, West Chester, Pa. Distributed by Tribune Content Agency, LLC.
