Public officials’ cellphone records to be considered public record

Mark Brnovich

Mark Brnovich

PHOENIX – Public officials can’t hide public business by using their own cellphones 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 cellphones 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 cellphones become public is when those messages are stored in a government database. That effectively created a loophole.

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 cellphone 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 cellphone,’’ 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 cellphones 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 public records law.