Are Texts or Social Media Messages Transmitted on Private Devices Considered Public Records?
by Christina Estes-Werther, League General Counsel
On July 7, 2017, the Attorney General issued Opinion No. I17-004 responding to the question of whether the state’s public records law applies to messages that were sent or received on a private cell phone or electronic device. Before delving into the opinion, it’s helpful to review the Arizona’s Public Records Law to understand what is a public record.
What is a Public Record?
In order to determine if a document is a public record it must undergo a fact-specific analysis. First, the content must be examined to determine if the public record statute applies. If it is determined to be a public record, then the presumption is to disclose the document unless privacy, confidentiality or best interests of the state concerns outweighs disclosure. Griffis v. Pinal County, 215 Ariz. 1, 5, 13, 156 P.3d 418, 422 (2007). The Arizona Supreme Court opined in 2006 that “the nature and purpose of the document determine its status, mere possession of a document by a public officer or agency does not by itself make that document a public record…”Griffis v. Pinal County, 215 Ariz. 1, 4, 11, 156 P.3d 418, 421 (2007)(citing Salt River Pima-Maricopa Indian Cmty. v. Rogers, 168 Ariz. 531, 538, 815 P.2d 900, 907 (1991)).
Arizona law requires public records and other matters in the custody of any officer to be open to inspection by any person at all times during office hours. A.R.S. § 39-121. “Record” is defined in A.R.S. § 41-151.18 and encompasses various types of materials including books, papers, maps, and photographs regardless of physical form or characteristics. Public records are records that are reasonably necessary or appropriate to maintain an accurate knowledge of official activities and any activities supported by public funds. A.R.S. § 39-121.01(B). Additionally, in Salt River, the Arizona Supreme Court provided three additional parameters to assist with a public records determination:
- Is the record made by the public official in pursuance of a duty in order to immediately disseminate information to the public or to memorialize an official transaction for the public?
- Is the record required to be kept or maintained in the discharge of a duty imposed by law or to serve as a memorial and evidence of something written?
- Is the record a written record of transactions of the public official that is convenient and appropriate for discharging the official’s duties and kept regardless of whether it is required by law?
Salt River Pima-Maricopa Indian Cmty. v. Rogers, 168 Ariz. 531, 538, 815 P.2d 900, 907-908 (1991). A “yes” to any of these questions means the document is a public record.
Are Electronic Messages on Government Systems Considered a Public Record?
As the Attorney General Opinion discusses, the Legislature expanded the public records law in 2000 to specifically include the definition of records under A.R.S. § 41-151.18, which emphasizes that the materials are considered records regardless of physical form or characteristics. This encompasses electronic records and metadata and likely any other future technologies. The Attorney General Opinion affirmatively states that electronic messages transmitted by a government-issued electronic device or social media account provided by a government agency for conducting government business are public records, unless the records qualify under a privacy exception. For example, if a city or town issues an employee a work cell phone, any texts or messages from social media accounts used to conduct city or town business are public records unless the message is of a personal nature.
Since all of Arizona’s 91 cities and towns have their own website and some municipalities may also utilize Facebook, Twitter, Instagram or other social media platforms to communicate with their residents it is important to be familiar with this law and any best practices. The April 2015 Legal Corner offered some guidelines to help cities and towns manage information posted in various electronic formats in order to be in compliance with public records and retention laws. Additionally, the 2017 League Annual Conference will offer a session addressing the use of social media by municipalities and elected officials.
Are Electronic Messages on Personal Devices Considered a Public Record?
The central question posed to the Attorney General was whether messages sent and received via texting and social media sites by a public official or public body on a private electronic device that has not been established as a system for conducting government business is subject to public records law.
The opinion states that these types of messages are not public records and points to the definition of “record” under A.R.S. § 41-151.18, which specifies that the definition only encompasses records made or received by any governmental agency. The Attorney General has interpreted this to mean that the state’s public records law does not extend beyond agency-maintained systems. The Attorney General provided a number of reasons for this interpretation including that an agency does not have control of private electronic devices or social media accounts and would be unable to maintain these records under retentions laws. Additionally, there is a strong privacy interest in personal electronic devices and social media accounts since many people utilize their electronic devices to keep extensive personal information; there is a separate obligation by public officials and public bodies to record their work and otherwise maintain records; and finally, there are criminal penalties for destroying and tampering with public records, which could create criminal liability for public employees without them realizing it.
However, the Attorney General also stated that a public official cannot use a personal device to circumvent the law and conceal records that may be subject to public records law. The consequences for failing to care or provide public records can be severe – A.R.S. § 13-2407 classifies tampering with a public record as a Class 6 felony. This classification includes the destruction or concealment that would impair the availability of a public record or the refusal to deliver a public record upon a proper request. Additionally, A.R.S. § 38-421(A) specifies that a public officer is guilty of a Class 4 felony if the person has custody of a public record and without authority destroys or removes the record.
As a public official or employee, it is recommended that you keep messages relating to your official government business separate from your personal messages so there is a clear delineation of your responsibility. If you must use your personal device to conduct official business it is your obligation to maintain any records of official activities and provide them to the city or town and failure to protect public records may result in criminal sanctions. Your city or town may have its own policy that addresses these situations.
The Attorney General concluded his opinion stating that this question has not been addressed by Arizona courts and it is the role of the Legislature to weigh the policy considerations that balance privacy rights with the goal of the public records law, which is to keep government activities transparent and accountable to the public. The opinion may result in legislation being introduced next session to address this topic as public officials and employees become more dependent on electronic devices – both government-issued and personal – as a primary form of communication.
