This post was updated at 3:15 p.m. with a new penultimate paragraph.

On January 21 at 9:03 a.m., Mayor Vince Gray received a text message on his city-funded cell phone. Fifteen minutes later, he responded, and three minutes after that someone texted him back. He sent or received 22 text messages that day. What did they say? Unless Gray himself fesses up, those messages could well remain beyond the prying fingers of the press and public—despite the fact that they were sent and received on a phone paid for with public dollars.

Over the last two months, DCist placed Freedom of Information requests both with 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.)

But it’s the spirit of the law that seems to be in question here. Couldn’t these messages, which are widely used—188 billion text message a month were sent in the U.S. in 2010—contain information of value to the public? In late January, for one, the Post reported that Councilmember Vincent Orange (D-At Large) and Gray’s legislative affairs director exchanged text messages pertaining to a hospital contract. Is that exchange a public document open to disclosure?

It’s a complicated discussion for sure, and on that other cities and states have grappled with. In some of those cases, though, they have come down on the side of public disclosure.

Last year, an Illinois court backed a prior opinion by the state’s attorney general that text messages constituted a public record that had to be disclosed to a journalist. “If the mayor and/or a city council member sent or received communications on personal electronic devices during city council meetings or study sessions, as specified in Mr. Wade’s request, and those communications pertain to the transaction of public business, then those communications are ‘public records’ subject to the requirement of FOIA,” Attorney General Lisa Madigan wrote in her opinion.

Last September, legislators in the United Kingdom were informed that the text messages they send each other might be public records subject to disclosure; in 2011, government officials were reported to have used text messages to get around those very disclosure laws.

The debate goes back even further: It was in 2007 and 2008 that reporters in Detroit tried to get text messages sent between then-mayor Kwame Kilpatrick and his chief of staff. Though the Detroit Free Press was able to gain access to 14,000 text messages sent between the two—including messages proving that they were having an affair—it pressed to have a court clarify that text messages are public records for the purposes of freedom of information laws. In 2008, a court ruled in favor of the newspaper.

This brings it back to the possession issue. Because D.C. doesn’t own the actual text messages, many of which may well not even be stored by carriers, the question is a practical one: If an elected official is sending messages pertaining to public matters over text message, how could a journalist or concerned resident take a look?

The council recently grappled with a similar situation related to the use of private email accounts. Last year the D.C. Open Government Coalition filed a FOIA request for the content of messages of emails sent from private accounts, which councilmembers and city employees have been known to use to conduct city business. The council responded by denying the claim, saying that it didn’t actually have the emails—they were stored on private servers, after all.

The group filed a lawsuit, and earlier this year the council settled the matter by passing new rules mandating that councilmembers turn over emails when requested. (Mayor Vince Gray has generally prohibited the use of private email accounts for public business, but sad that in the cases that they have to be used, the emails should be copied to government email accounts.) Of course, the council’s rules rely on the councilmember in question admitting that they have a private account and agreeing to turn over the emails themselves. Unless cities and states resolve the possession problem, the same standard might end up applying for text messages.

None of this, of course, settles the question as to whether text messages should be subject to disclosure to begin with. For some open government advocates, text messages about public business are public record, period. For others, though, they’re closer to conversations, and you still expect that even public officials will enjoy some modicum of privacy to discuss matters with their colleagues.

To the credit of Gray’s office, it did provide a log of all phone calls and text messages in and out of his phone for the month of January, though the numbers of those people calling or texting him were not included. The rejection of text messages will still be appealed, though.