After a three-judge appellate court ruled that public officials using their personal cellphones to conduct public business subject their devices to Arizona’s public records law, one of our legislators, Arizona Rep. Bob Thorpe [R-District 6], is seeking to overturn that ruling with legislation.
“... public employee’s private cellphone 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 cellphone for a public purpose.”
Thorpe’s House Bill 2265 would redefine “public record” to exclude
“any activity, communication, data or other form of content that is created, stored or received on any electronic device, server or digital network, including a social media or e-mail account or network or other online-enabled software, application, website or system, that a public body has not established as a system for conducting governmental activity or that is not supported by monies from this state or any political subdivision of this state for the purpose of conducting governmental activity.”
There is no gray area here. If passed, it would explicitly allow lawmakers to skirt Arizona’s public records law. But we can always trust our lawmakers to only conduct official business on official computers, smartphones and digital devices, right?
On the dark side, any nefarious elected officials who wanted to collude, conspire or wantonly break the law could simply use their personal phones or social media communications and claim the public records exception when voters or the press demanded to see what they had written, sent or who they called.
All lawmakers, if they were as noble as Thorpe would want us to believe, would make all their communications public so no voter would be in the dark. But, such nobility is hard to come by; thus, only complete transparency in communications keeps the public informed about what our elected officials are doing.
We know that even locally, public officials have used such a claim of privacy on personal devices to exclude their records from our reporting.
This required our newspaper to file Freedom of Information Act requests to get these records so we could report to the public what officials were doing out of the public eye.
Opponents worry that Thorpe’s bill is worded in such a way that lawmakers and officials could secretly conduct official business so long as the medium — Facebook, Twitter, private email or a smartphone — was not owned by the state or the government agency they represent.
Thorpe has already locked out his Twitter feed to the public in 2013 after he was rebuked by members of his own party for attacking fellow Republicans via the social media platform over Medicaid issues and for sending a series of tweets that Democratic lawmakers and civil rights activists said were racially insensitive.
Thorpe was forced by then-House Speaker Andy Tobin [R-District 1] to issue a public apology.
Now only followers Thorpe approves can see what he posts, so the rest of us, his constituents, can only wonder about what he may be writing or promising to those select and chosen few allowed to read his hallowed tweets.
Without being able to see his semi-public comments, voters can’t determine what me may be writing as their representative, nor whether he should be re-elected in November.
But any elected official who wants to support the bill and hide their communications from voters hasn’t earned the public trust and doesn’t deserve to hold public office.
The full text of the bill:
AN ACT AMENDING SECTION 39-121.01, ARIZONA REVISED STATUTES; RELATING TO PUBLIC RECORDS.
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 39-121.01, Arizona Revised Statutes, is amended to read:
39-121.01. Definitions; maintenance of records; copies, printouts or photographs of public records; examination by mail; index; exceptions
A. In this article, unless the context otherwise requires:
1. "Officer" means any person WHO IS elected or appointed to hold any elective or appointive office of any public body and any chief administrative officer, head, director, superintendent or chairman of any public body.
2. "Public body" means this state, any county, city, town, school district, political subdivision or tax-supported district in this state, any branch, department, board, bureau, commission, council or committee of the foregoing, and any public organization or agency, supported in whole or in part by monies from this state or any political subdivision of this state, or expending monies provided by this state or any political subdivision of this state.
B. All officers and public bodies shall maintain all records, including records as defined in section 41-151.18, THAT ARE reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which THAT are supported by monies from this state or any political subdivision of this state.
C. Each public body shall be responsible for the preservation, maintenance and care of that body's public records, and each officer shall be responsible for the preservation, maintenance and care of that officer's public records. It shall be the duty of Each such PUBLIC body to SHALL carefully secure, protect and preserve public records from deterioration, mutilation, loss or destruction, unless disposed of pursuant to sections 41-151.15 and 41-151.19.
D. Subject to section 39-121.03:
1. Any person may request to examine or be furnished copies, printouts or photographs of any public record during regular office hours or may request that the custodian mail a copy of any public record THAT IS not otherwise available on the public body's website to the requesting person. The custodian may require any person requesting that the custodian mail a copy of any public record to pay in advance for any copying and postage charges. The custodian of such records shall promptly furnish such copies, printouts or photographs and may charge a fee if the facilities are available, except that public records for purposes listed in section 39-122 or 39-127 shall be furnished without charge.
2. If requested, the custodian of the records of an agency shall also furnish an index of records or categories of records that have been withheld and the reasons the records or categories of records have been withheld from the requesting person. The custodian shall not include in the index information that is expressly made privileged or confidential in statute or a court order. This paragraph shall not be construed by an administrative tribunal or a court of competent jurisdiction to prevent or require an order compelling a public body other than an agency to furnish an index. For the purposes of this paragraph, "agency" has the same meaning prescribed in section 41-1001, but does not include the department of public safety, the department of transportation motor vehicle division, the department of juvenile corrections and the state department of corrections.
3. If the custodian of a public record does not have facilities for making copies, printouts or photographs of a public record which THAT a person has a right to inspect, such THE person shall be granted access to the public record for the purpose of making copies, printouts or photographs. The copies, printouts or photographs shall be made while the public record is in the possession, custody and control of the custodian of the public record and shall be subject to the supervision of such THEcustodian.
E. Access to a public record is deemed denied if a custodian fails to promptly respond to a request for production of a public record or fails to provide to the requesting person an index of any record or categories of records that are withheld from production pursuant to subsection D, paragraph 2 of this section.
F. PUBLIC RECORD DOES NOT INCLUDE ANY ACTIVITY, COMMUNICATION, DATA OR OTHER FORM OF CONTENT THAT IS CREATED, STORED OR RECEIVED ON ANY ELECTRONIC DEVICE, SERVER OR DIGITAL NETWORK, INCLUDING A SOCIAL MEDIA OR E-MAIL ACCOUNT OR NETWORK OR OTHER ONLINE-ENABLED SOFTWARE, APPLICATION, WEBSITE OR SYSTEM, THAT A PUBLIC BODY HAS NOT ESTABLISHED AS A SYSTEM FOR CONDUCTING GOVERNMENTAL ACTIVITY OR THAT IS NOT SUPPORTED BY MONIES FROM THIS STATE OR ANY POLITICAL SUBDIVISION OF THIS STATE FOR THE PURPOSE OF CONDUCTING GOVERNMENTAL ACTIVITY.
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