Attorney General: Officials can’t shield business on phones

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.

But in what could be an escape clause for those seeking to hide what they do, he said these are not public records. That means official requests for what’s on those phones is off limits.

And ditto for access to an elected official’s Twitter or Facebook postings.

In a formal legal opinion issued late Friday, Brnovich said it is clear that the Arizona Public Records Law covers not just things like papers and books but any documentary materials “regardless of physical form or characteristics.” He pointed out that the Arizona Supreme Court even has concluded that electronic documents can be demanded in their raw form, complete with internal coding.

What that makes clear, Brnovich said, is that if a public official is issued a cell phone by his or her agency, any messages sent or received dealing with government business are public records — and publicly available.

Brnovich acknowledged that sometimes an official will use a personal device. And he said there 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. And he put a finer point on it.

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

But here’s the thing: Brnovich said that texts through private cell phones — and even a public officials’ social media posts through things like Twitter or Facebook — are not public records. And that means a public official can ignore a request for such records on that person’s individual cell phone.

Brnovich said, though, his opinion should not be taken as encouraging public officials to use their personal devices or accounts to conceal official activity.

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, Brnovich 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 Brnovich essentially makes that self-policing — and with limited enforcement prospects — with his opinion that these private devices and postings are not public records.

And even in that obligation to record, Brnovich does not spell out how that “duty” must be performed.

Brnovich said there is an option for those who want to expand the Public Records Law to include those private postings: Take their case to the legislature.