OMG: Text messages sent by D.C. officials sneak By FOI laws

From DCist:

Over the last two months, DCist placed Freedom of Information requests both with [Mayor Vince] Gray's office and the D.C. Council, seeking the content of text messages sent using phones paid for by D.C. taxpayers. The inquiry was simple: If these phones are being paid for by taxpayers and being used for public purposes, then any information communicated over them would be subject to public disclosure, right? Well, no.
The council was quick to respond to the request, saying that despite the fact that 50 councilmembers and staff use the phones, "the Council does not possess the contents of text messages sent on District-funded cell phones." Gray's office said much of the same: "[The Office of the Chief Technology Officer] advised that they do not maintain, nor have access, to the 'text of text messages'."
According to District law, both the Council and Gray's office are correct. While a public record subject to disclosure is anything that is "prepared, owned, used, in the possession of, or retained by a public body" (including "information stored in an electronic format"), the key issue seems to be "possession." As both the council and Gray's office indicated, they don't actually possess the text messages we requested, so they can't very well provide something they don't have. (That being said, you could argue that since the city pays for those phones, they do in fact "possess" them and whatever is on them.)