Apps like Signal threaten government transparency, open records advocates warn Pa. senators | Politics

Dozens of public officials in Lancaster County have said they don’t conduct government business over message-deleting apps like Signal.

For now, the public will need to take them at their word.

Experts warned during a March 24 state Senate Intergovernmental Operations Committee hearing that there are no laws requiring officials to disclose their use of ephemeral messaging apps, and even if there were, they might be hard to enforce because the technology leaves no traces of conversations.

That potential gap in government transparency must be addressed soon by Pennsylvania’s General Assembly, according to open records advocates who testified in the hearing.

Melissa Melewsky, legal counsel for the Pennsylvania Newsmedia Association, said any messages local officials send through auto-deleting apps are likely unobtainable through a public records request under Pennsylvania’s Right-to-Know law due to the records no longer existing.

And though any meetings dealing with public business should be subject to the state’s open meeting law – the Sunshine Act – Melewsky noted the apps’ features would eliminate any evidence that the officials conducted business on them.

“The use of these messaging apps is both problematic from a transparency perspective, but it’s also problematic from a record retention policy,” Melewsky told the panel of senators.

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LNP | LancasterOnline reported nearly three years ago that at least 10 of Lancaster County’s elected officials had registered their phone numbers for accounts on end-to-end encrypted apps like Signal, WhatsApp, Wickr, Telegram and Viber.

But contacted this past week, Lancaster City Council, Lancaster County commissioners, many of the county’s 60 municipalities and nearly every one of its school boards asserted their members do not use such apps to conduct government business.

Some claimed their members had not even known of the apps.

Officials’ use of Signal, in particular, has faced criticism in recent weeks since President Donald Trump’s top national security advisers discussed war plans in a Signal group chat that included The Atlantic’s editor in chief, Jeffrey Goldberg. National media outlets have dubbed the incident “Signalgate.”

Statewide issue

Michigan is the only state to ban all departments and agencies from using apps that could violate the state’s public record retention laws. It did so in 2021.

In Pennsylvania, cases of elected officials using auto-deleting apps have already been challenged in court.

One of those lawsuits was brought by Timothy Daly, a Bucks County resident, who alleged that board members of Central Bucks School District violated the Sunshine Act by using Signal to communicate about official business.

Daly, who testified at the March 24 hearing, urged the panel of senators “to do something to improve the process to ensure proper transparency in government.”

Asked by Sen. Vincent Hughes, a Philadelphia Democrat, what changes lawmakers should pursue, Melewsky suggested they look at other states.

“Some prohibit public business from being discussed on personal devices or nongovernmental accounts,” Melewsky said. “That way, everything that exists about the operation of government business should be on a government server or a government account that is easily accessible to government agencies.”

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Melewsky also said she agreed with the testimony of Joshua Bonn, a partner at law firm Cohen Seglias, about the need for Pennsylvania to adopt a clear record-retention policy.

Bonn told senators that a lack of legislative guidance from the General Assembly grants local government officials “significant discretion.”

“The history is that there have time and time again been reports of public officials who have deleted messages that are later determined to be public records, but that they cannot get access to,” Bonn said.

Whether a record exists is the first question the Pennsylvania Office of Open Records asks when an appeal reaches its office, according to Executive Director Liz Wagenseller.

“There are no penalties or admonishments if there’s a record that was inappropriately deleted before the Right-to-Know request was made,” Wagenseller told senators.

During the hearing, committee Chairman Jarett Coleman, a Lehigh County Republican, pointed to a recent Broad + Liberty report that an attorney representing Gov. Josh Shapiro’s administration told a court that emails from a cabinet secretary who resigned during a sexual harassment scandal two years ago were no longer available.

‘We’re old school’

Most of the responses from officials in Lancaster County echoed Pequea Township Supervisor Harry Lehman’s response: “We don’t do any of it. … We’re old school.”

Despite acknowledging they do not use such apps to avoid Sunshine Act violations, spokespeople for many of the public entities also stated they do not have formal policies to prohibit them

State organizations representing local governments seemingly oppose any such regulation.

In written testimony submitted to the Senate committee, Frank Mazza, director of government relations at the County Commissioners Association of Pennsylvania, said his organization does not see the need to adjust current government transparency laws because those laws already cover “these types of communications if they are ‘records’ of agency business.”

Though Mazza also said his group is willing to work with all stakeholders to “review reasonable, practical solutions to address any public transparency law concerns.”

Also, Brian Rengert, director of government relations for the Pennsylvania State Association of Township Supervisors, wrote that “new legislation seems unwarranted, since existing law places appropriate safeguards on the protection of records relating to government business.”

Pennsylvania’s Right-to-Know Law has been interpreted by the judiciary to clarify the types of records that must be made available to the public since it was adopted in 2008. Courts have ruled that it covers email and text exchanges from an elected official on their government or personal devices if those messages include agency business.

Yet, Melewsky said neither the Right-to-Know Law nor the Sunshine Act directly addresses the use of ephemeral messaging apps, leaving government officials an opportunity to subvert state law.

“Without clear guidance from the General Assembly, and as technology continues to advance, this problem will likely persist in eroding the public’s rights under the Sunshine Act and the Right-to-Know Law to transparent, accountable government,” Melewsky warned in her written testimony.