FOIA and Text Messages: What Agencies Must Disclose
The Freedom of Information Act was written in 1966 for a government of paper, and it now governs a government that texts. The collision produces one of the most practical questions in federal transparency: when a requester asks for text messages, what must an agency actually search, retrieve, and disclose? The short answer: texts that qualify as agency records are subject to FOIA like any other record, the 2014 records amendments closed the personal-device gap, and the agencies that struggle are the ones whose messages live where no records system can reach. This explainer walks through the statute, the key concepts, the exemptions, and the operational fix.
Key takeaways:
- FOIA (5 U.S.C. 552) applies to agency records in any format; a text message can be an agency record exactly as an email can.
- The two-part agency-record test from Department of Justice v. Tax Analysts asks whether the agency created or obtained the material and controls it.
- The Federal Records Act amendments of 2014 explicitly cover electronic messages and require forwarding official business from personal accounts into agency systems within twenty days.
- FOIA's nine exemptions apply to texts the same as to any record; medium is never an exemption.
- Producibility is an infrastructure problem: agencies that text on archived official platforms answer requests in days, not discovery battles.
The statute: records in any format
FOIA grants any person a right of access to federal agency records, subject to nine exemptions. Congress has repeatedly modernized the statute for electronic reality: the Electronic Freedom of Information Act Amendments of 1996 confirmed that records include information maintained in electronic format, and the FOIA Improvement Act of 2016 strengthened proactive disclosure and codified the foreseeable harm standard, requiring agencies to release records unless disclosure would foreseeably harm an interest protected by an exemption.
Nothing in that structure turns on the medium. A message is not less of a record because it traveled by SMS instead of a mail cart. The Department of Justice's own FOIA guidance treats electronic messages as records when they meet the standard tests, and courts have ordered searches of text messages where the facts warranted.
When is a text an "agency record"?
The Supreme Court's test from Department of Justice v. Tax Analysts (1989) asks two questions: did the agency create or obtain the material, and is it within the agency's control at the time of the request? Applied to texting:
- A program manager texting a contractor about deliverables creates a record of agency business; the messages are agency records.
- An official's text to a spouse about dinner documents nothing about government functions and is not an agency record, whatever device carried it.
- Business conducted by text on a personal phone is the hard historical case, and Congress addressed it directly.
The Presidential and Federal Records Act Amendments of 2014 amended the Federal Records Act (44 U.S.C. ch. 29-31) to cover electronic messages explicitly and added 44 U.S.C. 2911: an officer or employee may not create or send a record using a non-official electronic messaging account unless the message copies an official account at creation or is forwarded to an official account within twenty days. The design is clear: whatever channel a message takes, it must land in a system the agency controls, where records management and FOIA can operate on it. Courts of appeals have likewise reasoned, notably in Competitive Enterprise Institute v. Office of Science and Technology Policy (D.C. Cir. 2016), that an agency cannot shield work-related communications from FOIA by keeping them in a private account.
State transparency laws have converged on the same conclusion for state and local texts, a landscape mapped in the companion piece Are government text messages public records?
What agencies may withhold
FOIA's nine exemptions apply to texts precisely as to paper. The exemptions most often relevant to messages:
| Exemption | Covers | Texting example |
|---|---|---|
| (b)(5) | Privileged inter- and intra-agency material, including deliberative process | Draft positions debated by text before a decision |
| (b)(6) | Personnel and similar files whose disclosure would be a clearly unwarranted privacy invasion | Personal phone numbers, medical mentions |
| (b)(7) | Law enforcement records meeting listed harms | Texts within an active investigation |
| (b)(1) | Properly classified national security information | Rare in SMS, but format does not defeat classification rules |
Two discipline points. First, exemptions justify redaction and withholding, never a failure to search; an agency must still locate responsive texts before applying exemptions, and the 2016 foreseeable harm standard requires more than reciting an exemption's name. Second, segregability applies: non-exempt portions of a message thread must be released after redaction.
The real problem: searchability and production
Most FOIA friction over texts is operational, not legal. A responsive email lives in an archived system the FOIA office can search. A responsive text may live on a device in a drawer, a departed employee's personal phone, or an auto-deleting app, and each of those becomes a collection project, a delay, and sometimes a controversy. Inspectors general and litigation have repeatedly surfaced the pattern of official texts that could not be produced because retention failed at the device level.
The fix is the same one records officers reached at the state level: move official texting onto managed infrastructure.
- Official texting platforms archive every message, participant, and timestamp centrally, making a FOIA search a query instead of a forensic exercise.
- Written channel policy directs public business to official channels and instructs staff on the twenty-day forwarding rule for anything that strays.
- Retention by schedule. NARA's General Records Schedules, including GRS 5.2 on transitory records and agency-specific schedules, assign retention periods by content; a text follows the schedule its content earns, not a default of deletion.
- Export tooling produces threads in reviewable formats for FOIA processing and litigation holds.
- Constituent-facing texting benefits doubly: agencies that answer residents by text, as described in the state agency constituent services guide, generate exactly the records FOIA contemplates, already archived and searchable.
The broader compliance stack for public-sector messaging, consent, accessibility, security, and records, is covered in the government SMS compliance guide.
For requesters: drafting a text-message FOIA request
Precision improves both speed and completeness:
- Name custodians and dates. "Text messages sent or received by [officials] between [dates]" beats "all texts."
- Name the medium broadly. "Text messages, SMS, MMS, and messages on any messaging application, on official or personal devices, concerning [subject]."
- Anticipate the search question. Ask the agency to describe the systems searched, which surfaces whether message archives exist.
- Expect redactions, not refusals. Exemptions will apply to some content; a categorical position that texts are unsearchable warrants administrative appeal, where the 2014 amendments and the case law above are the requester's authorities.
Frequently asked questions
Are text messages subject to FOIA?
Yes, when they qualify as agency records: created or obtained by the agency and within its control, documenting government business. FOIA (5 U.S.C. 552) applies to records in any format, and the medium of SMS neither includes nor excludes a message by itself.
Can agencies withhold text messages under FOIA?
They can withhold or redact texts under the same nine exemptions that govern all records, most commonly deliberative process under (b)(5), personal privacy under (b)(6), and law enforcement under (b)(7). The 2016 foreseeable harm standard requires the agency to show disclosure would harm a protected interest, and non-exempt portions must be segregated and released.
What about official business texted on personal phones?
The Federal Records Act, as amended in 2014, prohibits conducting agency business on non-official messaging accounts unless the message is copied or forwarded to an official account within twenty days (44 U.S.C. 2911), and case law rejects shielding work communications in private accounts. Practically, business texts belong on managed channels where the agency can search and produce them.
How long must federal agencies keep text messages?
By content, under NARA-approved records schedules: a transitory scheduling text and a substantive decision-making thread carry different retention periods. No schedule blesses automatic deletion of business communications outside their retention rules, which is why archiving platforms are the compliant default.
How should agencies prepare for FOIA requests about texts?
Adopt an official texting platform with central archiving and export, direct official business to it by written policy, train on the twenty-day forwarding rule, apply records schedules to messages, and test the search workflow before a request arrives. Agencies with this infrastructure treat text FOIA requests as routine queries.
Conclusion
FOIA does not care how a message traveled; it cares what the message documents and whether the agency can produce it. The statute, the 2014 amendments, and the case law have settled the principle, leaving agencies with an engineering task: put official texting where records management can see it. Do that, and the next request for texts is a search box and an export, and the agency's transparency record stays as clean as its channels.
Want texting that survives a FOIA request? Contact the FRANSiS team to see how agencies run constituent and internal texting with automatic archiving, retention, and export designed for public records obligations.
