A new court ruling provides an opportunity to connect some dots spanning two years and two elections.
Officials’ cell phones may be public records reports Jim Small (Arizona Center for Investigative Reporting) in this morning’s GV News.
In a ruling last week, the Arizona Court of Appeals held that a public employee’s private cell phone records can be considered public records if the employee used the cell phone for a public purpose.
The unanimous ruling from a three-judge panel contradicts an attorney general’s opinion earlier this year that concluded communications made by public employees or elected officials solely on private electronic devices or private social media accounts are never public record, even if those devices or accounts are used to conduct public business.
Judge Paul J. McMurdie wrote in the court’s opinion that, under Arizona’s public records statutes, “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.”
Attorney David Bodney, who regularly represents media outlets seeking public records from government officials, said the ruling supersedes the opinion of Attorney General Mark Brnovich, who held that Arizona public records laws are limited to electronic communications or records on government devices or social media accounts only.
In the past, elected officials and government workers have denied public records requests for text messages and direct messages on social media accounts on the grounds that they were made on private devices or private accounts, and thus weren’t covered by public records law.
In addition to requiring disclosure of public records from the private devices of government officials, Bodney said the ruling means “there could be consequences” for officials who don’t retain those records. Under Arizona law, it is a felony to destroy or “otherwise impair the availability of any public record.”
The trick here is how to establish that “the employee used the cell phone for a public purpose.” How does one go about determining that the records were for a public purpose without knowing the content of those records in advance? The answer: use metadata - the phone logs of who called who. Here’s a case study.
Back in July of 2015 I posted this update on a scandal that snared Arizona Corporation Commissioner Bob Stump, Arizona Public Service and its parent company, and two candidates for the ACC: Stumped by Stump’s Stunts? Here’s the latest rundown on the Corporation Commission texting scandal.. Snipshots follow.
Here are some reminders about the background on the matter of Arizona Corporation Commission (ACC) member (and former ACC chair) Bob Stump’s communications with a lobbyist, Republican candidates for ACC, and dark money operative.
Prior to the 2014 election Stump sent many text messages using an ACC iPhone. The details of those messages including phone numbers, but not the content, were obtained by the watchdog group, Checks and Balances Project (CBP). Then started a battle royale between the ACC and CBP. ACC refuses to share the phone with CBP and claims the texts of the messages do not exist. CBP counters that ACC could get those messages from Verizon by subpoena. In the latest bout, Stump has complained to the media that CBP is cherry-picking the messages. CBP replied by publishing the entire listing of Stump’s text messages and their phone numbers. Stump decried the invasion of his privacy. CBP dug in and laid the blame on ACC’s refusal to go after the content of Stump’s text messages.
To get a full appreciation for this battle, you need to read the most recent articles and posts [which I listed].
I quoted the CBP:
Accessing the text messages would answer several questions related to Stump’s communications.
The text logs show Stump communicated with two candidates for the commission, Tom Forese and Doug Little, as well as the head of an independent group that spent money supporting those candidates.
Campaign laws prohibit candidates from coordinating with such independent “dark-money” groups, and the Checks and Balances Project has suggested Stump could have been acting as a go-between for the group.
Stump’s text log also showed he communicated during the election season with an official from Arizona Public Service Co. The electric utility is regulated by the commission and is widely believed to have donated money to dark-money groups that supported Forese and Little, who won their elections.
Without the actual content of the text messages, it is impossible to determine whether Stump was merely communicating with friends, as he has said, or helping coordinate campaign spending, as Checks and Balances suggests.
The text messages also could answer whether Stump broke commission rules over communications with companies with business at the commission that is scheduled for a hearing.
But the latest court ruling suggests (to Scriber who is not a lawyer) that all those emails are public so we could have access to the actual content - unless they were purposefully scrubbed, in which case there is a different, potential culpability on the part of the scrubber.
But this development might be destined for the scrap heap of history. The CBP Arizona archives appear to be closed due to a flawed court action for StumpGate.
However, the story of dark money in the 2014 election of Republican commissioners continues. Commissioner Bob Burns keeps trying to ferret out that story. Latest developments in the legal wrangling between Burns and APS is reported by Howard Fischer in this morning’s Daily Star: Law’s wording to play key role in court case involving APS’ political spending. The issue now is whether Burns as an lone individual commissioner has the constitutional authority to subpoena records from companies that are regulated by the ACC. My reading of the AZ statute suggests to me that Burns is right. But, hey, I’m a non-lawyer so what do I know.
FYI: Stump has announced a run for the AZ CD8 seat vacated by Trent Franks’ resignation. The Washington Post reports that Republicans jump in as elections to replace Rep. Franks set.
Two Republicans immediately announced they would run in the Feb. 27 primary: Bob Stump, a former utility regulator and state Sen. Steve Montenegro. Both are painting themselves as conservatives, with Montenegro vowing to back President Donald Trump and Stump touting the expertise he developed as a regulator.
Maybe that expertise includes keeping public records private.