Page 30 - The Edge - Spring 2018

BY JESSICA SANCHEZ
Arizona Court of Appeals Ruling: You Can’t Hide

Public Records by Using Private Devices and Accounts

Jessica Sanchez

On December 7, 2017, the Arizona
Court of Appeals issued a ruling holding
that a “public employee’s private cell phone
records pertaining to the conduct of public
business may become public records subject
to disclosure if a public records requestor
establishes the employee used the cell phone
for a public purpose.”
This ruling from the Arizona Court of
Appeals supersedes a July 2017 Attorney
General Opinion, which stated that “[m]essages
sent or received by a private electronic device
or through a private social media account
implicate the public o cial’s duty to provide a
reasonable account of o cial conduct, but do
not themselves harbor public records.” [Note:
e Attorney General was still careful in his
opinion to remind public o cials that they ILLUSTRATION/jamesteohart
cannot conceal o cial conduct by using private devices.] and the like, are not subject to a public records request. [Note: Records
So, what does this ruling mean? Essentially, the ruling from that contain both private and work-related content may have to be
the Arizona Court of Appeals means that, unlike what was opined turned over in their entirety or may be subject to court review to
this summer by the Arizona Attorney General, you will not be able determine what is and is not considered to be a public record].
to avoid disclosing records of your o cial duties simply because So what now? If employees are going to use or are permitted
the records were created using your private devices or your private to use their private cell phones, tablets, iPads, home computers,
accounts. personal social media accounts to conduct work related business,
Some examples of public records that may be contained on employees should be:
your private devices or in your private accounts include, but are • In-serviced about records retention guidelines and should be
not limited to: a text message conversation about the discipline reminded not to delete public records before allowable under the
of an employee, emails sent and received on your personal email appropriate retention schedule.
accounts when your work email was not working, calendars on • Reminded that it is NEVER allowable to delete public records
your personal devices about work appointments and meetings, to avoid disclosure.
emails from a private account requesting agenda items for a Board • Made aware that personal devices can be required to be turned
meeting, and so on ... over for the time it takes to copy the work-related information so
If you use your personal cell phone, computer, social media that it can be disclosed to the person requesting the information.
accounts, and the like, to conduct your o cial duties, then you • Reminded that when an email, text, SnapChat, etc. contains
create the possibility that you may have to turn over records from both personal and work-related information, the WHOLE thing
your private devices and accounts pursuant to a public records may have to be disclosed, not just the work-related portion.
request. You also create a practical and legal problem if you do not Or, in light of the recent ruling, maybe this is a good time to
accurately maintain records of your o cial duties and activities. remind employees to keep their work and personal life separate.
So, what does the ruling not mean? e ruling from the Arizona
Court of Appeals doesn’t open your purely private records and Jessica Sanchez is a member of the School Law section,
communications to the public. Whether you use your personal or representing Udall Shumway’s education law clients throughout
government devices and accounts, purely private, records, for example, Arizona. If you have questions about public records or other
your grocery list, your text messages about who will pick up the kids, education law concerns, please contact Ms. Sanchez at (480) 461-
your email wishing a co-worker a happy birthday or successful surgery, 5374 or jss@udallshumway.com.

30 THE EDGE SPRING 2018

THE EDGE |