Public Records Laws and Social Media Retention in
Arizona

41-151.18. Definition of records

In this article, unless the context otherwise requires, “records” means all books, papers, maps, photographs, or other documentary materials, regardless of physical form or characteristics, including prints or copies of such items produced or reproduced on film or electronic media under section 41-151.16, made or received by any governmental agency in pursuance of law or in connection with the transaction of public business and preserved or appropriate for preservation by the agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations or other activities of the government, or because of the informational and historical value of data contained in the record, and includes records that are made confidential by statute.

2018 Arizona Agency Handbook, Chapter 6

6.3 Types of Public Records.

18. A public record “maintained in an electronic format includes not only the information normally visible upon printing the document but also any embedded metadata,” Lake v. City of Phoenix, 222 Ariz. 547, 551, ¶ 12, 218 P.3d 1004, 1008 (2009);

OPINION BALES, Justice.

Arizona law provides that “[p]ublic records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.” Ariz.Rev.Stat. (“A.R.S.”) § 39-121 (2001). The City of Phoenix denied a public records request for metadata in the electronic version of a public record. We today hold that if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws.

City of Phoenix Social Media Term of Use/Disclaimer

City of Phoenix employees and public officers (such as Board or Commission members) are reminded that their contributions to social media sites may be considered government speech rather than private speech and may be governed by Arizona and federal laws such as Arizona Open Meetings Law or federal elections and campaign laws.

Questions Presented

Are messages sent and received via texting and social media sites by officers or public bodies that have a substantial nexus to the job public records, even if the employee uses a private cell phone or electronic device?

Summary Answer

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. With respect to communications conducted on private devices or accounts, although private devices or accounts do not themselves harbor public records, public officials have an affirmative duty to reasonably account for official activity. This duty encompasses official activity engaged in through private devices or accounts. In other words, public officials cannot use private devices and accounts for the purpose of concealing official conduct.