Transparency laws keep many communications among officials about government business open to the public. But the advent of encrypted messaging apps, many of which include settings to auto-delete messages, have prompted good-government advocates to raise the alarm.

Open-government proponents say the use of auto-deleting messaging platforms for government matters violates the spirit of public records laws, and a recent state investigation finding that former State Superintendent of Schools Mohammed Choudhury and some of his staff used the app Signal for work-related exchanges highlights those concerns once again.

The topic also became a local flashpoint in 2022, with Democratic Maryland lawmakers calling for reforms after The Washington Post reported that then-Gov. Larry Hogan, now running for U.S. Senate, was using the self-deleting messaging features of an app called Wickr to communicate with his executive team.

“Unfortunately, at all levels of government, whether federal, state or local, we see elected officials and government officials try to avoid public records laws and retention laws by using messaging apps and self-deleting messages,” said Aaron Scherb, senior director of legislative affairs for the national government accountability group Common Cause.

Many exchanges among Maryland officials, such as emails about state business, are presumed open for public inspection — the general public can request them under the Maryland Public Information Act. Not all records are releasable; the law contains rules for what is exempt, and other records may be destroyed in time frames set by agency retention schedules.

“Ultimately, it just comes to down to transparency and sunlight — making sure that the public and voters can get an understanding of how their elected officials and public officials are spending their time, how they’re representing us,” Scherb said.

The situation becomes blurrier when officials use apps intended to keep those conversations private. Several apps have features that automatically delete messages, opening up the possibility of infringing upon records-retention programs and open records laws, at least in spirit. It’s hard to determine if, and how, officials are on those apps. And even if they’re using the apps, it’s difficult to tell what their conversations are about and if they should be considered public.

The Maryland Office of the Inspector General for Education said in its report last month that Choudhury had said he used Signal to communicate with members of his executive team and that “occasionally, work-related matters got ‘mixed in’ with personal issues.”

“Often, there’s a blur, a shade of gray between personal and official,” said Scherb, noting that an exchange could start as a “purely personal communication” but then “dip into their professional responsibilities.”

“We would always err on the side of open records laws capturing more of those communications,” Scherb said. “It’s all about the public having a right to know and having that transparency to ensure that the public — and especially voters — have the information that they need.”

In Choudhury’s case, the inspector general’s report said it opened its probe after receiving a complaint that the superintendent used Signal “to discuss government policy and vendor contract decisions.” It concluded that Choudhury and “key members” of the Maryland State Department of Education executive team used Signal “for communications relating to both personal and work-related matters,” and identified a “pattern” of education officials using the app to discuss “work topics.” But the report doesn’t specify what matters were discussed nor if and how Choudhury used the app’s feature that automatically deletes messages.

Choudhury was initially confronted over his use of Signal last September by FOX45, telling a reporter that he didn’t use Signal “for my job.” The television station had obtained screenshots of work-related communications, which included Choudhury discussing licensing for a data analytics program used by the state education department. The screenshots also show the former state superintendent, who stepped down from his post last October and has since been replaced, setting a timer to make his messages disappear after one hour.

The problem isn’t necessarily that officials are using Signal, WhatsApp, Telegram or any of the dozens of encrypted messaging platforms now available, said Del. Vaughn Stewart, a Montgomery County Democrat. It’s mainly how those apps have been used — especially the auto-deleting functions — without regard to records-retention schedules and open records laws, he said.

Stewart and fellow Democratic lawmakers introduced legislation in the wake of Hogan’s Wickr revelations to ensure “any written, electronic, audio or video communication” involving public business would be subject to the state’s public records laws. Although open records laws and retention schedules would cover most of those records, Stewart said that the bill, which did not pass, was mainly to make the law clearer. The bill also stipulated that the Office of the Governor is a “unit of government” required to retain and archive certain records. Hogan’s team had said that the governor’s office was not a “unit” of government subject to such retention laws but rather the head of state government.

In the Wickr chatrooms, Hogan’s staff used the app’s “Burn-On-Read” timers to schedule messages for destruction 24 hours after they were read. Stewart noted that one could use similar tactics on basic platforms like Apple’s iMessage, though it would be slightly more tedious.

Stewart noted that deleting communications about governmental business, no matter how it’s done, goes against what records-retention schedules are intended for: transparency. The public has a right to know about how policy is made, and Hogan’s staff was using the “Burn-On-Read” chatrooms to communicate about policy with “people like Roy McGrath,” Stewart said, referring to the former Hogan aide who became a fugitive on wire fraud charges and died during an encounter with federal agents.

And at the very least, retaining communications and other records gives historians a way to look back on what led to major policy decisions, Stewart said.

The inspector general’s summary of the superintendent’s office said that “the practice continued until public scrutiny increased,” despite a former member of the executive team expressing concern about “the optics and potential implications of using such an application.”

The summary says that Choudhury considered the Signal messages to be “miscellaneous records that could be discarded as he saw fit,” apparently referring to the department’s records-retention schedule, which provides that “telephone messages” are “miscellaneous records” to be “retain[ed] until no longer needed by the office” and then destroyed. That schedule was most recently revised in 2005, according to a Maryland State Archives database.

The inspector general’s office recommended that the state education department “update its internal policies to address the use of encrypted or ephemeral messaging applications” and develop requirements for retaining work-related messaging data. A spokesperson for the department said it was working on updating those policies.

Crafting a policy to curb the use of such apps is a “tricky, challenging kind of thread,” said Scherb, but it could be as simple as a directive from the top not to use any sort of messaging apps for state business.

Missouri Gov. Mike Parson banned the use of a similar app called Confide within the state’s governor’s office — his predecessor, Eric Greitens, was found to be using the app along with his staff, prompting an attorney general’s investigation that ultimately found no wrongdoing. Former White House Press Secretary Sean Spicer once warned his staff that using Confide and Signal was a violation of the Presidential Records Act, though his warning came during a crackdown on leaks to the press.