Like many states, Arizona has an open records law that mandates that all public records be open to inspection by any person at all times during office hours. Yesterday, the Arizona Supreme Court held that not all e-mails created or maintained on a public agency’s computer are necessarily public records.
Like many states, Arizona has an open records law that mandates that all public records be open to inspection by any person at all times during office hours. Yesterday, the Arizona Supreme Court held that not all e-mails created or maintained on a public agency’s computer are necessarily public records. Additionally, the Court held that when a substantial question has been raised regarding whether an e-mail is a public record, the trial court should conduct an in camera review of the withheld document to determine whether it is subject to disclosure. See Griffis v. Pinal County (Arizona, April 25, 2007).
In Griffis, the Arizona Supreme Court was called upon to determine whether the personal e-mails of a county manager, created and maintained on the county’s computer system, are subject to disclosure as public records. An Arizona trial court held that they were presumptively public records because they were prepared and stored on the county’s computer system. The court of appeals reversed this decision, holding that because the e-mails were personal, they were not public records and need not be disclosed. Neither of the lower courts reviewed the content of the e-mails.
Two-Step Process:
The Arizona Supreme Court held that determining whether a document must be disclosed under the public records law is a two-step process. First, if there is a substantial question regarding whether the document is subject to the public records law, the trial court must determine whether the document is a public record. If it is, the presumption in favor of disclosure applies. Even where this presumption applies, the court may perform a balancing test to determine whether interests of privacy, confidentiality, or the best interests of the state outweigh the presumption.
If the document is not a public record, it is not, of course, subject to disclosure. In determining whether a document is a public record, the Supreme Court rejected any presumption that all e-mails created on a government-owned computer system are automatically public records. Instead, the Court held that where a substantial question is raised regarding whether a document is a public record, the trial court should conduct an in camera review of the documents in question. The Court held that this step is appropriate because it permits the judge, rather than the parties, to determine when a document is subject to disclosure.
Additionally, the court held that the standard for raising a “substantial question” is low. In cases such as this, where the disclosure of e-mails created and maintained on a government computer is sought, a party can raise a substantial question by showing that the opposing party withheld documents on the grounds that they are personal or private. “Once a requesting party makes this basic showing, that party can ask the court to conduct an in camera inspection of any withheld documents to determine whether they possess the requisite nexus with official duties that is required of all public records.”
The Court noted that courts frequently conduct in camera inspections in balancing privacy versus public interest when there is no question regarding whether a document is a public record. The Court’s decision in Griffis just adopts a parallel procedure for the first step of the process – determining when a disputed document is a public record.
Record Must Have Substantial Nexus to Government Agency’s Function:
The Court’s decision in Griffis also provides direction to trial courts for determining when a document should be considered a public record. The Court held that the definition of public records, while broad, does not encompass documents of a “purely personal or private nature” but instead includes only those documents having a “substantial nexus” with a government agency’s activities. Because the nature and purpose of the document determine its status, the mere possession of a document by a public officer or agency does not make it a public record, nor does the fact that the document was created using public funds. “[T]he purpose of the [public records] law is to open government activity to public scrutiny, not to disclose information about private citizens.”
In this case, because the lower courts did not examine the content of the e-mails, the Court directed the trial court to perform an in camera review to determine whether the withheld e-mails should be disclosed.
Employers' Bottom Line:
The Arizona Supreme Court’s decision in this case provides direction to public employers when faced with requests for documents that they believe are not public records. The Court clarified that not all documents in the possession of a government employee or agency are public records. It also clarified, however, that the agency must be prepared to submit any withheld documents to the trial court for review. The Court also clarified that only those documents with a substantial nexus to the government agency’s operation are public records.
While this decision is not binding on courts outside the state of Arizona, other states may adopt the process set out by the Arizona Supreme Court for determining when an e-mail or other arguably private document is subject to disclosure as a public record.
If you have any questions regarding this decision, please contact the Ford & Harrison attorney with whom you usually work or Troy Foster, a partner in our Phoenix office at tfoster@fordharrison.com, or 602-627-3504.