Disappearing messages should disappear

It seems like ancient history by now, but take a moment and think back to Defense Secretary Pete Hegseth’s use of the disappearing message app Signal. This troubling behavior that would have gotten most enlisted soldiers court marshalled if not bounced out of the service, came to light when Jeffrey Goldberg, the editor of The Atlantic, revealed that he had received Hegseth’s messages about secret plans, including warplane launch times for the U.S. military in planned strikes in Yemen against the Houthis. Goldberg had been inadvertently included on a group Signal chat that included several people in the Trump administration’s national security orbit. Another similar Hegseth Signal chat with his wife, brother and his personal lawyer also revealed military plans.

In this case, you might say, stupid move, but good thing Hegseth used an app that allows messages to quickly be erased. The Pentagon Inspector General concluded after 10 months that the Signal messages had put personnel and mission security at risk. While it appears that the information did not fall into the hands of nefarious actors who might be on the lookout for U.S. government officials using insecure messaging apps, who knows for sure? Transparency was never the Pentagon’s best trait before Hegseth but now it’s even worse.

And it turns out that the use of disappearing messaging apps isn’t limited to the Trump administration. Here’s the deal: in the federal government, and in most state and local governments, there is not enough attention paid to the fact that various people in government are using messaging apps that allow messages to quickly evaporate. But they should be paying attention. That’s because those messages, if the users are discussing official government business even on their own phones or computers, are public records and should be preserved, not erased.

Lawyers have already figured out that the use of disappearing messaging apps is a problem. Many struggle to get information from the government for lawsuits in which their clients’ cases would be substantially strengthened if, through the discovery process, they could get their hands on government messages exchanged on messaging apps. But they often find that those messages and comments have disappeared into the ozone, never to be found again. Many states have overlooked the fact that these types of messages and comments are being made on apps that allow them to quickly disappear – a violation of almost every state’s public records law.

Many of these laws already note that electronic communications, including text messages, are part of the public record and are subject to public records requests, if government business is being discussed. (I wrote about this recently about Kentucky’s state supreme court finding a way around that requirement here).

But what if government officials are conducting their government business over apps that, similar to Signal, allow messages to simply disappear? That’s much like the battle going on in Washington state over whether the government should be preserving messages exchanged in chats in widely used online communication systems such as Microsoft Teams, Google Meet and Zoom. Shouldn’t these messages be subject to disclosure under state public records laws and the federal Freedom of Information Act – and therefore should be preserved?

Most definitely, says Jamie Nixon, a former state government employee, who is a leading voice for open government in Washington state.

More than a year ago, Gov. Bob Ferguson, a Democrat, suspended the state’s use of auto deletion of chats in online video calls after the state paid out $225,000 in a settlement to end a lawsuit against the Department of Children, Youth and Families for destroying chat records. The lawsuit’s plaintiff was Trent Wilkinson, a lawyer in the firm that brought the case after news stories were published about a seven-day automatic records purge. The purge had been quietly used since 2021, as Shauna Sowersby in the Seattle Times reported, even though lawyers in the state attorney general’s office had warned against it amid concerns that the quick destruction of records would violate the state’s Public Records Act, and record retention policies. Ferguson was attorney general at the time.

Timothy Hall, whose firm brought the case against the Department of Children, Youth and Families, said he had become aware that the agency was scuttling its chats in online discussions when he tried to get them for another client who was seeking information about his own dependency case (the term describes a case when a child is removed from the parent’s custody).

“We could not get those records,” Hall told me by telephone. His firm has offices in Walla Walla and Yakima.

“I was pretty shocked. They had long since been deleted.”

That led Hall and his colleagues to seek more records from the Department of Children, Youth and Families. No records were produced. They had been deleted. The firm got a $225,000 settlement – public money – and soon after that, Ferguson now the governor, halted the practice of automatic deletion of chats and other messages.

Ferguson also promised his administration would conduct an internal assessment that would determine what the government should do to avoid destroying public records. That report, which Ferguson had said would be made public in about six months from the time of his announcement in 2025, is now almost a year overdue. Sowersby told me that she has tried to get information from the governor’s office about the timetable for release of the report, but so far, has gotten no information on a release date.

Meanwhile Nixon sued the state in 2024, challenging the auto delete practice as a violation of the state’s open records law. But the courts, all the way to the Washington state supreme court, dismissed his case, saying among other reasons, that he lacked standing to sue because he had not been harmed. That put the ball firmly back in the hands of the state government. So Nixon, like many others in Washington state and beyond, are waiting to see what happens next.

Let’s not leave this issue to the lawyers. These records belong to the public, who are paying the salaries of the people who are engaging in the use of disappearing messages and destruction of public records. Here’s why it is important for disappearing messages – among many other types of government records – to be preserved. American Oversight, an open-government- oriented nonprofit, along with the American Historical Association, have thus far successfully blocked the Trump administration from ignoring the Presidential Records Act,

American Oversight described one element of the legal debate this way: the Trump administration’s assertion that the Presidential Records Act is unconstitutional, if successful “could block access to more than 700 million White House emails alone, which would make it incredibly challenging to hold the administration accountable for any of its actions.”

Thus far, a federal judge has ordered Trump administration records to be preserved. Meanwhile, another government agency - the Securities and Exchange Commission - continues to have a rule on the books that requires broker-dealers and investment advisers to preserve all kinds of records, including messages in ephemeral messaging apps, such as Signal, Teams, etc. What’s good for business also ought to be standard operating procedure for the U.S. government, as well as state and local governments.

Let me know if your state is allowing automatic deletion of chats, and other messages and information from online conversation tools such as Signal, Teams, Zoom, et al. While the technology for these online conversations is generally a plus, the use of auto deletion that can be built in, are a big negative for transparency and your ability to learn what your government is doing.

Meanwhile, Joy Banks, executive director of the Council of State Archivists offered this chart showing records retention policies and statutes in many states.

And here’s a podcast from Jamie Nixon about the impact on state and local governments when records are erased.

Want to learn more about state and local secrecy. My book Backroom Deals in Our Backyards: How Government Secrecy Harms Our Communities and the Local Heroes Fighting Back is available directly from The New Press, my publisher. Use this link and include discount code Backroom30.