PHOENIX – Public officials can’t hide evidence of their official activities through texts and social media posts made from their personal cell phones, Attorney General Mark Brnovich has concluded.
In a formal legal opinion issued late Friday, Brnovich 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 provides 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.’’
“That’s wrong,’’ said attorney Dan Barr of the First Amendment Coalition. He said a 2007 Arizona Supreme Court ruling spells out that it is the content of the communication that determines whether something is a public record, not where it is stored or from what device it was sent.
Potentially more significant, Barr said he fears that public officials seeking to hide activity will use the wording of Brnovich’s opinion as a reason to refuse to disclose their communications.
“The mischief that will happen for somebody who doesn’t want to turn over records in the first place, they will seize upon the language ... and say, ‘Aha, here’s a reason I can withhold this. And the attorney general says so,’”Barr said.
But Brnovich said his 11-page opinion should not be taken as an excuse or a road map for elected officials and other government employees as a way to conduct business outside of public scrutiny. He said if they do use personal devices there still is an “affirmative duty to reasonably account for official activity.’’
“This duty encompasses official activity engaged in through private devices or accounts,’’ the attorney general wrote. “In other words public officials cannot use private devices and accounts for the purpose of concealing official conduct,’’ he said.
Brnovich said that even with no law covering those texts and postings, he said public officials and public bodies have “independent obligations to record their work and otherwise maintain records.’’ What that means, he said, is that if some official activity does occur through a text on a personal phone or a Facebook or Twitter post, “it is the duty of the public official to record the activity.’’
But with his opinion that these private devices and posting are not public records, Brnovich essentially makes that self-policing.
And even in that obligation to separately record public activity, Brnovich does not spell out how that “duty’’ must be performed.
Brnovich conceded his view of what is – and is not – a public record is based solely on his reading of existing Arizona law.