Originally Published: December 22, 2017 5:52 a.m.
PHOENIX — Public officials can’t hide public business by using their own cell phones for texts, emails and social messages, the state Court of Appeals has ruled.
In a decision with broad implications, the judges rejected arguments by the Attorney General’s Office that someone has no right to seek information off the private cell phones of Department of Public Safety officers. Judge Paul McMurdie, writing for the unanimous three-judge panel, noted that DPS officers admitted they routinely use their personal phones for official business.
Potentially more significant, the new ruling conflicts with an opinion issued earlier this year by Attorney General Mark Brnovich.
He said the only time messages from private cell phones become public is when those messages are stored in a government database. That effectively created a loophole.
But McMurdie said that limitation does not apply.
There was no immediate response from Brnovich.
The case involves Robin and John Lunney who had sought records from DPS and the state Department of Public Safety following the 2012 death of their son. A trial judge rejected their contention they were entitled to the private cell phone records of the officers at the scene of the accident.
McMurdie said it’s not that simple.
On one hand, the judge said the public is not entitled to a public employee’s purely personal records.
“As recognized by the United States and Arizona Supreme Courts, an individual has a cognizable private interest in her or her personal cell phone,” McMurdie wrote. But the judge said the line between public and private has to be resolved by a court looking at the information being sought to determine if it qualifies as a public record.
Here, McMurdie said, there is no question but that the officers were using their own cell phones to conduct police business while working.
The only thing that kept the trial judge from determining if what was on those phones crossed into the public realm was that DPS contacted the officers who told them that what the couple wanted did not exist. Therefore, McMurdie said, there was no violation of the public records law.
But what remains, however, is the appellate court’s clear statement of Arizona law.
“A public employee’s private cell phone records pertaining to the conduct of public business may become public records subject to disclosure if a public records requestor establishes the employee used the cell phone for a public purpose,” the court concluded.
In a formal opinion in July, Brnovich concluded that public officials can’t hide evidence of their official activities through texts and social media posts made from their personal cell phones.
He said there is a “duty” of those who conduct official business on their own devices to record them for preservation. Ditto, he said, of messages sent through social media sites like Facebook and Twitter.
But Brnovich provided what could be an escape clause for elected officials and others seeking to hide what they do.
“If the electronic message is solely on a private electronic device or through a social media account that an agency has not established as a system for conducting government business, then ... the electronic message is not a public record,” he wrote. And Brnovich said a 2000 change to the law expanding it to cover electronic records includes only those on “agency-maintained system.”
Dan Barr, attorney for the First Amendment Coalition, said the appellate court ruling makes it clear that’s not the case. “The loophole wasn’t there to begin with,” he said of Brnovich’s opinion. “Brnovich thought it was.”
What the appellate court has done, Barr said, is made clear that the question of what is a public record depends on what is in it, not where it is located.
“You look at the nature of the communications,” he said. “You don’t look at what type of device and who owns it.”
Potentially more significant, Barr said the ruling unless overturned says that public officials have an obligation to preserve all of those personal communications. He said that includes not only emails which are most likely to be backed up automatically on some server but texts which exist only on the phones of the sender and recipient — texts which could routinely be deleted.
“If you’re using your official email account, its a lot easier to preserve those records because it’s on the public body’s (computer) server,” Barr said. “But if you’re going to try to circumvent the public records law by using your Gmail account or texting, then the onus is on you to maintain those records.”