Private electronic communications

Also known as rejected private email address, rejected social media request.

Thank you to Beryl Lipton for contributing to this entry. This guide is for informational purposes only, is general in nature, and is not legal opinion nor legal advice regarding any specific issue or factual circumstance.

A.R.S. § 39-121.01; Griffis v. Pinal Cnty.

Example Appeals

A situation in which the agency has refused to release emails or text messages, generally, and, in particular, messages held on a private system, known to exist but not provided.

To Whom It May Concern:

This is an appeal of a determination under the Arizona Public Records Law regarding the collection and release of materials held either in email or text message by a particular government employee.

The agency in question has denied the release of such materials in response to a request. According to Attorney General Opinion [I17-004 (R15-026)](https://www.azag.gov/sgo-opinions/whether-arizona%E2%80%99s-public-records-law-extends-beyond-its-terms-and-applies-privately), “Electronic messages sent or received by a government-issued electronic device or through a social media account provided by a government agency for conducting government business are public records.” This determination necessitates the search and release of electronic materials generally.

The determination made in Griffis v. Pinal Cnty. that “‘only those documents having a ‘substantial nexus’ with a government agency’s activities qualify as public records’ even when created and located on government systems or devices,” does not seem to necessarily preclude the search and release of such records when they are contained on a system not recognized as belonging to a government agency. In his opinion, the Attorney General writes, “Thus, where a government agency provides a device or social media account as a means of conducting government business and generating public records, messages sent or received by any such device or account are public records unless of a purely private or personal nature.” However, this protection of private matters inappropriately conducted on a public system does not also protect public matter inappropriately conducted on a private system.

As the AG notes, government agents have a responsibility to properly retain their work and records.

“While nothing herein should be read as encouraging the use of private electronic devices or social media accounts to conduct official activities, if such activity does occur it is the duty of the public official to record the activity in accordance with A.R.S. § 39-121.01.[3] Government agents are presumed to meet this obligation.”

Given the reasonable suspicion that such materials have not been properly retained, it would be appreciated if reconsideration would be given to the collection and release of materials responsive under the Arizona Public Records Law, the release of which is the responsibility of both the office in question and the Attorney General of this state.

Thank you.