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The Arizona Public Records Act requires that records maintained by all state and local government agencies be open and available for inspection in a manner:

reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by monies from the state or any political subdivision of the state.

A.R.S. section 39-121.01(B).

Often, newspapers and citizens interested in the operation of our state and local government make requests to obtain copies of records maintained by government agencies such as the police, the Department of Economic Security, the Department of Transportation, the Department of Insurance and others. State and local governments maintain a wealth of information in connection with all aspects of the operation of government. These records contain useful information about government and can also play an important role in holding our government and even private industry accountable for conduct which causes harm. For this reason, I strongly support open access to public records under the Arizona Public Records law.

Access to public records has limits. For example, in order to protect the integrity of an investigation, records relating to a pending criminal action will likely not be released to the public until the investigation has been completed. Records containing private information such as confidential social security numbers, addresses or other sensitive information generally will not be disclosed by a government agency as well. Although government does not provide complete and unfettered access to records maintained by a government agency, the extent of limitations on access to records has been the subject of fierce debate. Periodically the Arizona Supreme Court has become involved in this debate about what records should be considered public and private. This week, the Arizona Supreme Court issued an opinion on this very issue.

The Arizona Supreme Court issued a decision confirming that electronic mail records generated or maintained on government owned computer systems are generally considered public records subject to release and inspection pursuant to the Arizona Public Records Act. The Arizona Supreme Court did hold that some electronic mail relating solely to personal matters should not be considered public record and that a court, rather than government or government officials should conduct an independent review of allegedly personal electronic mail to confirm or reject whether a message related “solely to personal matters.” The Court reiterated that for policy reasons, Arizona maintains a broad definition of the term “public record.” However, the Court indicated that:

Because the nature and purpose of the document determine its status, mere possession of a document by a public officer or agency does not by itself make that document a public record, id., nor does expenditure of public funds in creating the document, . . .. To hold otherwise would create an absurd result: Every note made on government-owned paper, located in a government office, written with a government-owned pen, or composed on a government-owned computer would presumably be a public record. Under that analysis, a grocery list written by a government employee while at work, a communication to schedule a family dinner, or a child’s report card stored in a desk drawer in a government employee’s office would be subject to disclosure.

The court then held that electronic mail composed by a public employee and claimed to be personal in nature must nevertheless be examined by a judge before withholding that record from production pursuant to the Arizona Public Records Act. I belive that a person loses any expectation of privacy when they do not take any steps to encrypt electronic mail and when they use public resources to send allegedly private electronic communications. In my opinion, a person cannot have an expectation of privacy when their electronic mail accounts are likely already subject to monitoring and oversight and termination if abused. Therefore, I believe that the Arizona Supreme Court incorrectly decided this case. I believe all electronic mail should have been considered public records pursuant to the Arizona Public Records Act. However, in light of this decision, I believe that the Supreme Court appropriately struck a balance between a government employee’s privacy expectations and the public’s right to know by leaving the determination about whether communication should be considered public or private to the judiciary. By so doing, a judge and not the government employee must review and evaluate what information should be considered public or private.

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