The Arizona Public Records Law mandates government agencies to retain public records in all forms, including electronic records. As such, this law applies to social media records in Arizona.
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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 pursuant to 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.
The Office of the Arizona Secretary of State provides guidance on social media records management in the state. Jerry Lucente-Kirkpatrick, a Records Analyst at the office, is a valuable resource for obtaining insights into the handling of social media records in Arizona.
The Arizona Attorney General's Agency Handbook includes provisions that emphasize the importance of preserving embedded metadata in electronically generated and maintained records, including social media records.
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);
In the 2009 Lake vs. City of Phoenix case, the Arizona Supreme Court ruled that metadata is an integral component of electronically generated public records, including social media records. The court noted that when a public officer uses a computer to create a record, metadata forms a part of the document, as much as the visible content. This ruling highlights the necessity for comprehensive archiving of social media records in Arizona, which goes beyond merely copying and pasting the visible information on a screen or printed copy.
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.
The City of Phoenix provides an excellent illustration of a social media policy that explicitly recognizes social media as subject to the Open Meetings Laws. The policy further clarifies that social media comments are considered public records in Arizona and are subject to disclosure upon request under the public records law.
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.
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.
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