AG opinion: Officials must preserve public records even on private phones; privacy vs transparency, says Rose Law Group attorney Tom Galvin

Rose Law Group Reporter

Public officials can’t use private phones or social media messages to get around public records laws, Arizona Attorney General Mark Brnovich stated in an opinion Friday.

On the other hand, the AG also concluded information on those private cells phones is not actually a public record, even if it pertains to public business

Brnovich said public officials have a duty to preserve records that pertain to public business, even if they’re on private cell phones.

The opinion was requested by Democratic Sen. Steve Farley in December 2015 after a Capitol Times investigation found shoddy compliance with records requests for text and social media messages.

That statement falls short of the clarity Farley sought in his request to Brnovich in 2015. Arizona Capitol Times made an effort to get records of public business conducted on personal cellphones by former Senate President Andy Biggs and former House Speaker David Gowan.

The official opinion issued by Brnovich clarifies existing state law that explicitly states that electronic communications sent through a government-issued device are public records. The question was whether that law extends to public business conducted on an official’s personal device.

Brnovich said it does, but with limits. The opinion says records on personal devices or social media accounts don’t necessarily become public records. But using personal devices for official business implies a duty to provide “a reasonable account of the official conduct.”

“In other words, public officials cannot use private devices and accounts for the purpose of concealing official conduct,” he wrote.

“I don’t know how good it’s going to be in guidance, because what I was looking for was clear guidance in what was public record and what wasn’t,” Farley said. “It leaves it up to us.”

Brnovich wrote that requiring a public official to allow his or her personal cellphone to be examined could violate laws providing “broad protection” for personal privacy. Courts have noted that cellphones can contain personal and intimate personal information, he wrote, and a records search could potentially expose much more information that a home search.

“Classifying messages on personal electronic devices and social media accounts as public records would potentially expose the entire contents of employees’ personal electronic devices and social media accounts to agency access and perusal as part of the public records response process,” he wrote.

Brnovich noted that officials have an “independent obligation” to maintain public records, and they could face criminal penalties for destroying them. Extending the requirement and the associated criminal penalties to their personal devices is up to the Legislature, not him, he said.

Information from various news sources

“The information on personal devices on personal devices is not “public record” because an agency doesn’t have a clear method of collecting and storing much less knowing about the existence of those communications. But an elected official is not supposed to conduct business on a personal device – as a means of concealing the information – and he/she must disclose it.

 “The AG opinion is saying that the difficulty comes when someone tries to obtain information from the personal device – which presents privacy issues. But, the bottom line is that a public official who is secretly conducting government business on personal devices (or private social media accounts) is breaking the law.”

~ Tom Galvin