Your district may have issued you a laptop, tablet, or even a smartphone for your work-related tasks—but you might also be using a personally owned device to communicate with co-workers about work issues.

And though your district might allow or even expect you to use your own device in the course of your job, you should know about a recent legal change that gives government employees, including school employees, additional responsibilities to retain work-related information that can be considered a “public record”—even if that information is stored on a personal device. The law also created potential penalties for noncompliance.

Your district might have already provided you guidance on maintaining or sharing such records on an ongoing basis. Regardless of whether your district has addressed this issue, however, be aware you are now legally considered a “temporary custodian” of any public records you might possess and have new duties to maintain such records. Your phone is still your personal property, and your private information will remain private. However, as a current or former public school employee, you have no right to keep private any public information you created or received just because it is on your private device.

Your Responsibilities as a “Temporary Custodian”

School districts and their employees have always been subject to the Texas Public Information Act, or Chapter 552 of the Texas Government Code. This act gives the public the right to access information about public business, including public education. The Texas Attorney General’s Office has ruled such information is a “public record” regardless of where it is stored. Districts and their employees have an obligation to maintain and, subject to specific exceptions, quickly share records in response to a request.

The change in the law reflects the proliferation in the use of personal technology. The new responsibilities set forth in §552.004 of the Texas Government Code require public employees possessing public information on a private device to:

• Preserve that information in its original form in a backup and on the privately owned device; or
• Forward or transfer the public information to the district to be preserved on its server.

Examples of public records you might already have and need to maintain or transfer include any work-related communications (such as emails and texts), downloaded or created documents, and social media posts. The new law requires a person to retain (i.e., not delete) such information, even after they leave a district, unless the information is forwarded to the district’s public information officer. When the information is requested of you, you have 10 days to forward it, or you could be subject to penalties. This duty lasts for as long as the district would retain the information if it were on the district’s system. The length of time is set in local policy.

While the duty to share public records has existed for a long time, this new duty to keep records is leading districts to examine their local policies. One approach public schools may take—and one that might reduce the number of records you are required to maintain—is to direct employees to use specific communication apps through district accounts while using personal devices. Such apps could automatically store data in a place accessible to the district, relieving you, the employee, of the obligation to keep it. Districts may also direct employees to use district devices when possible, reducing the number of records you must maintain or transfer.

The law does not say how long a district has to keep records or specify how employees should forward records to their district. In the absence of direction, you should seek clarification on the district’s retention policy, and, as before, remain aware that you can be required to turn over work-related content. That said, this law does not give a public employer the right to search a privately owned phone. If you are directed or requested to allow such a search, you should seek legal advice.

The legal information provided here is accurate as of the date of publication. It is provided for general purposes only. Individual legal situations vary greatly, and readers needing individual legal advice should consult directly with an attorney. Eligible ATPE members may contact the ATPE Member Legal Services Department. February 2020.