Attorney General: Officials can't shield business on phones

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Arizona Attorney General Mark Brnovich. (Source: 3TV/CBS 5) Arizona Attorney General Mark Brnovich. (Source: 3TV/CBS 5)

Elected officials or government employees have a duty to preserve records related to the public's business even if they are created on their personal cellphones or social media accounts, Arizona Attorney General Mark Brnovich said on Friday.

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.

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

"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.

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