Originally Published: January 15, 2018 6:02 a.m.
PHOENIX — A veteran state lawmaker is carving out what one lawyer calls a large and “blatant” exemption to the state’s public records law.
The proposal by Rep. Bob Thorpe, R-Flagstaff, would spell out that any records stored on the private cell phone, computer or social media of a public official or employee are not required to be disclosed. More to the point, HB 2256 is worded so that exemption would apply even if the public official were actually conducting official business on the device.
Thorpe’s legislation comes just weeks after the state Court of Appeals ruled that public officials cannot hide public business by using their own cell phones for texts, emails and social messages.
“It just shows what everybody always thought,” attorney Dan Barr of the First Amendment Coalition told Capitol Media Services. “We all knew how public officials use texting to try to circumvent the public records law.”
Barr said that should have come to a halt following the appellate court ruling. Instead, he said, Thorpe wants to not only overturn that decision but enshrine into statute a method of keeping what public officials are doing out of public view.
Thorpe, in a prepared statement, said there are “conflicting and confusing court rulings” on the subject.
But the three-term representative made it clear he does not think anything on a personal device should be subject to disclosure.
“I’d have no objection to the state providing legislators with mobile devices to conduct state business on,” Thorpe said. “However, if I’m paying the monthly phone bill on my personal device, I think those records ought to belong to me.”
Barr sees it from a different perspective.
“To be so blatant about it, (he is saying) ‘I want to be able to use text messaging to continue to circumvent the public record law,’ “ the attorney said.
Barr said the Court of Appeals made it clear that public officials cannot engage in “that sort of subterfuge.”
“Now he wants to make it explicit,” Barr said.
What is explicit is the ruling written by appellate Judge Paul McMurdie in a case involving whether the public was entitled to the text messages between Department of Public Safety officers at the scene of an accident. The officers admitted they routinely use their personal phones for official business.
“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 requestor establishes the employee used the cell phone for a public purpose,” McMurdie wrote.
Barr said that ruling should have come as no surprise. He said there are prior court rulings which essentially have said the same thing.
In a unanimous 2007 ruling, the Arizona Supreme Court said the test of whether a document is a public record is not where it is stored but whether the underlying document itself is public.
Ruth McGregor, who was chief justice at the time, said that means, for example, that it is not a public record when a public official makes out his or her grocery list on a public computer.
“You don’t look at whether the account is private or the phone is private or not,” Barr said. “You look at what the purpose of the message is to determine whether it’s a public record or not.”
That isn’t just Barr’s opinion on the state of the law.
In 2016, Dennis Wells, the state’s official ombudsman, wrote that text messages are “no different than any other electronic record.”
“The bottom line is that it does no matter that it is a text message, and it does not matter what phone is used to send or receive the text message,” he wrote. “If the text message is made or received by a public employee or official in connection with the transaction of public business, it is a public record.”
Thorpe isn’t the only legislator seeking changes in the state’s public records law. But the proposal by Rep. Anthony Kern, R-Glendale, actually moves in the opposite direction.
HB 2118 would it mandatory for a judge to award legal fees and other costs if someone who is denied a public record has to go to court. Right now that is only an option for a judge.
“There’s an issue out there where cities and towns and government is just dragging its feet when it comes to public records requests,” Kern said. More to the point, he said there are “no repercussions” when public officials take their time in responding.
“We want to lean on the side of the taxpayer and lean on the side of the Arizona citizen,” Kern said.
He acknowledged his legislation, in its current form, does not spell out how long is too long to wait. Kern said he may amend the bill when it comes up for a hearing to say that 30 days is a reasonable period unless a request is particularly complex.