Are an Arizona public official's text messages and social media DMs about government business public records, even if sent on a personal phone or account?

Plain-English summary

Senator Steve Farley asked the AG whether texts and social media messages with a "substantial nexus to the job" were public records when sent or received by a public official, even if the official used a personal device or a personal social media account. The question was a question of first impression in Arizona, no Arizona appellate court had addressed it.

AG Mark Brnovich split the answer in two:

1. Government-issued device or account. Yes, those messages are public records (unless purely private/personal in nature). The AG drew on the Arizona Supreme Court's Griffis and Lake cases, which already treat government devices as containers of public records, and the appellate ACLU v. DCS case treating government databases the same way.

2. Private device or private account. No, those messages are not public records. The AG read the 2000 amendment to A.R.S. § 39-121.01(B), which incorporated the records definition from § 41-151.18, as deliberately tying public-record status to materials "made or received by any governmental agency." Private devices and private accounts are not government systems and therefore not within the public records statute.

The AG attached a critical caveat to the second part: public officials have an affirmative duty under § 39-121.01(B), (C) to maintain records "reasonably necessary or appropriate to maintain an accurate knowledge of their official activities." That duty applies regardless of the medium used. So an official cannot use a personal device to hide official conduct, the duty travels with the official, even if the device does not.

The AG drew on four lines of reasoning to defend the private-device conclusion:

• Statutory text. The 2000 amendment specifically tied electronic records to materials "made or received by any governmental agency." Reading "other matters" in § 39-121 to cover private-device messages would render the 2000 amendment superfluous.
• Practical control. Agencies cannot search or retain materials on devices they do not own. Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980).
• Privacy. Personal phones and social media accounts contain extensive private information. Riley v. California, 134 S. Ct. 2473 (2014), recognized this in the Fourth Amendment context. Treating personal devices as public-records repositories would expose deeply private content to records-request workflows.
• Criminal liability. A.R.S. § 38-421 makes it a class-4 felony to knowingly destroy or tamper with public records. Expanding the public-records definition to cover private devices would create criminal exposure without legislative authorization, against the rule of lenity (Crandon v. United States, 494 U.S. 152 (1990)).

The AG explicitly noted that other state supreme courts had reached different conclusions on similar questions, citing Washington's Nissen v. Pierce County and California's City of San Jose v. Superior Court, but stated that those policy choices belonged to the Arizona Legislature, not to the courts or the AG's office, when they conflicted with the plain statutory text.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

How the AG reasoned

The opinion's pivot was the 2000 amendment to A.R.S. § 39-121.01(B), which added "including records as defined in section 41-1350" (now § 41-151.18). That cross-reference brought the broad records definition, "all books, papers, maps, photographs or other documentary materials, regardless of physical form or characteristics," into the public records framework.

The critical phrase in the imported definition was "made or received by any governmental agency." The AG read that language as load-bearing: it meant electronic records were public records when they passed through agency systems, not when they passed through any system. The Arizona Supreme Court in Lake v. City of Phoenix, 222 Ariz. 547 (2009), had already pointed to the 2000 amendment as the source of the modern electronic-records framework. The AG followed that thread, an electronic record was a public record only when it was on agency-controlled infrastructure.

If "other matters" in § 39-121 were read to cover any electronic communication regardless of system, the AG reasoned, the 2000 amendment would have been superfluous. The doctrine that the Legislature does not include "redundant, void, inert, trivial, superfluous, or contradictory" provisions (Vega v. Morris, 184 Ariz. 461, 463 (1996)) cuts against that reading.

The AG also distinguished Griffis v. Pinal Cnty., 215 Ariz. 1 (2007). In Griffis, the Arizona Supreme Court said "only those documents having a 'substantial nexus' with a government agency's activities qualify as public records," even when stored on government systems. The AG read that "substantial nexus" test as a limit on what counts as a public record on a government device (excluding purely personal use of a government phone), not as an expansion that pulls in private devices.

The "affirmative duty" thread was where the opinion gave teeth to the private-device exclusion. Section 39-121.01(B) and (C) require officers and public bodies to "maintain all records . . . reasonably necessary or appropriate to maintain an accurate knowledge of their official activities." That duty does not depend on the device. So if an official conducts public business on a personal phone, the official has a statutory obligation to record that activity in the agency's systems. The opinion did not lay out the precise contours of that duty (footnote 3 expressly punted), but the principle was clear: officials cannot use private channels to evade transparency obligations.

The opinion's last move was a separation-of-powers argument. The AG noted that Washington and California had reached different conclusions on similar questions: Washington's Nissen v. Pierce County held that public records on private devices remain public, and California's City of San Jose v. Superior Court held that records on personal accounts can fall under the state public records act. The AG acknowledged those decisions but said the Arizona Legislature, not the AG's office or the courts, had to decide whether to extend the statute to private devices. Until the Legislature acted, the plain statutory text controlled.

Common questions

Q: If I am a journalist filing a public records request in Arizona, can I get the mayor's text messages?
A: This opinion drew the line based on the device. If the mayor sent the texts from a city-issued phone, those messages would be public records (subject to a "substantial nexus" inquiry under Griffis). If the mayor used a personal phone, the AG concluded the messages themselves are not public records, but the mayor still had a statutory duty to maintain records of official activity, which an agency could in theory be asked to produce.

Q: Did the AG say officials can hide official business on personal phones?
A: No. The opinion was emphatic that the records-retention duty in § 39-121.01(B), (C) does not turn off just because the official picks up a personal phone. Officials had an "affirmative duty to reasonably account for official activity," even when they conducted that activity through private devices or accounts. The opinion did not, however, spell out exactly how that duty must be satisfied.

Q: How did Arizona's answer compare to other states?
A: Arizona was an outlier among its neighbors at the time. The opinion specifically cited Washington's Nissen v. Pierce County (2015), which held that public records on private devices remain public records, and California's City of San Jose v. Superior Court (2017), which held the same for personal email and accounts when used for public business. The AG acknowledged these decisions but said they reflected policy choices that the Arizona Legislature, not the AG, would have to make.

Q: What about emails from a personal Gmail account about public business?
A: The opinion's logic extended to any communication on any private system: if it was on a government-controlled system, it was a public record (subject to the Griffis "substantial nexus" test); if it was on a private system, it was not. The official's underlying duty to record official activity in agency systems was the only constraint.

Q: Could an agency ever access a public official's personal phone?
A: The opinion did not address agency authority to demand access. It addressed only whether the messages on the phone were "public records" under the public records law. Other legal mechanisms (subpoenas in litigation, criminal investigations, ethics commission processes) would be governed by their own rules.

Q: Does this apply to elected officials, appointed officials, or both?
A: The statute applies to "officers and public bodies," which the courts have read broadly to include both. The opinion did not draw a distinction between categories of officials.

Background and statutory framework

Arizona's public records law sits in A.R.S. § 39-121 et seq. Section 39-121 itself says "[p]ublic records and other matters" in the custody of any officer must be open for inspection. Section 39-121.01(B) imposes an affirmative duty on officers and public bodies to "maintain all records . . . reasonably necessary or appropriate to maintain an accurate knowledge of their official activities."

Until 2000, the statute did not explicitly address electronic records. The 2000 amendment added the cross-reference to the records definition in what is now § 41-151.18, which includes "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."

The Arizona Supreme Court read this evolution in Lake v. City of Phoenix, 222 Ariz. 547 (2009), holding that when an agency maintains a public record in electronic form, the document's metadata is itself a public record. Griffis v. Pinal County, 215 Ariz. 1 (2007), held that only documents with a "substantial nexus" to government activities count as public records, even when stored on government systems, an important limit that protects purely personal use of government equipment.

What none of these cases had addressed before this opinion was the converse situation: messages on a private device that have a substantial nexus to government activities. The AG's 2017 opinion was the first authoritative Arizona pronouncement on that question. It came out in favor of a categorical, device-based rule rather than the substance-based "substantial nexus" rule used by other states.

Citations and references

Constitution and statutes:

• Ariz. Const. art. II, § 8 (broad protection of individual privacy)
• A.R.S. § 39-121 (public records open for inspection)
• A.R.S. § 39-121.01(B), (C) (duty to maintain records of official activity)
• A.R.S. § 41-151.18 (definition of "records")
• A.R.S. § 41-151.16(A) (electronic records authority)
• A.R.S. § 38-421 (felony for knowingly destroying public records)

Arizona cases:

• Griffis v. Pinal Cnty., 215 Ariz. 1 (2007) (substantial-nexus test for documents on government systems)
• Lake v. City of Phoenix, 222 Ariz. 547 (2009) (metadata is a public record)
• ACLU v. DCS, 240 Ariz. 142 (App. 2016) (CHILDS database is a public record)
• Phoenix New Times, L.L.C. v. Arpaio, 217 Ariz. 533 (App. 2008) (purpose of records law is public oversight)
• Carlson v. Pima Cty., 141 Ariz. 487 (1984) (breadth of § 39-121.01)
• Mobilisa, Inc. v. Doe, 217 Ariz. 103 (App. 2007) (Arizona constitutional privacy protection)

Federal cases:

• Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980) (records outside agency control)
• Riley v. California, 134 S. Ct. 2473 (2014) (privacy interest in cell phones)
• Bracy v. Gramley, 520 U.S. 899 (1997); United States v. Armstrong, 517 U.S. 456 (1996) (presumption of regularity)
• Crandon v. United States, 494 U.S. 152 (1990) (rule of lenity)

Out-of-state cases (for contrast):

• Nissen v. Pierce Cty., 357 P.3d 45 (Wash. 2015)
• City of San Jose v. Superior Court, 389 P.3d 848 (Cal. 2017)

Source

• Landing page: https://www.azag.gov/opinions/i17-004-r15-026
• Original PDF: https://www.azag.gov/sites/default/files/2025-06/I17-004.pdf

Original opinion text

To:

Senator Steve Farley

Arizona State Legislature

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?[1]

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.

Analysis

I. Electronic Messages Sent or Received Using Electronic Devices or Social Media Accounts Provided by A Government Agency for Conducting Government Business.

Public officers and bodies in Arizona are legally obligated to "maintain all records . . . 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 this state or any political subdivision of this state." A.R.S. § 39-121.01(B). Public records are generally open to inspection by any member of the public during office hours. A.R.S. § 39-121. "[T]he core purpose of the public records law . . . is to . . . allow the public access to official records and other government information so that the public may monitor the performance of government officials and their employees." Phoenix New Times, L.L.C. v. Arpaio, 217 Ariz. 533, 541 ¶ 27 (App. 2008) (internal quotation marks and citation omitted).

An electronic message sent or received using a device or a social media account provided by a government agency for conducting government business is a public record unless it is of a "purely private or personal nature." See Griffis v. Pinal Cnty., 215 Ariz. 1, 4 ¶10 (2007) ("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); see also Lake v. City of Phoenix, 222 Ariz. 547 (2009) (where government agency maintains public record in electronic format, document metadata associated with record was also public record); ACLU v. DCS, 240 Ariz. 142(App. 2016) (CHILDS database was public record), review denied (Apr. 18, 2017). 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.

II. Electronic Messages Sent and Received Using Private Electronic Devices or Social Media Accounts Not Established As Systems For Conducting Government Business.

If the electronic message is solely on a private electronic device or through a social media account that an agency has not established as a system for conducting government business, then, as explained below, the electronic message is not a public record.

This is a question of first impression in Arizona, as no Arizona appellate decision has addressed the applicability of the public records law to electronic messages on non-government electronic devices or messages on non-government social media accounts.[2] Courts interpret statutes by looking first to the plain language of the law as the best indicator of the legislature's intent. Premier Physicians Grp, PLLC v. Navarro, 240 Ariz. 193, 195 ¶ 9 (2016). When an ambiguity exists in a statute, courts "determine its meaning by considering secondary factors, such as the statute's context, subject matter, historical background, effects and consequences, and spirit and purpose." Id. "[G]enerally 'the legislature does not include in statutes provisions which are redundant, void, inert, trivial, superfluous, or contradictory.'" Vega v. Morris, 184 Ariz. 461, 463 (1996).

Since 2000, the Arizona Public Records Law has covered electronic records as a result of legislative action, which expanded the statutory definition of public records to include records regardless of physical form or characteristics. Specifically, the Legislature amended § 39‑121.01(B) as follows (additions are noted by underlines and deletions by strike-through):

All officers and public bodies shall maintain all records, including records as defined in section 41-1350, reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by funds from the state or any political subdivisionthereofof the state.

2000 Ariz. Sess. Laws ch. 88, § 54 (2d Reg. Sess.).

The first change is relevant to the present analysis. It incorporated by reference the definition of the term "records," which (as reflected in the current version of § 39-121.01(B)) has been renumbered to § 41-151.18. That definition provides in relevant part that "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 § 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 . . . .

A.R.S. § 41-151.18.

The effect of this change was to make clear that materials "regardless of physical form or characteristics" count as records. The 2000 amendment of § 39-121.01(B) is therefore critical to understanding the scope of the public records law as it applies to electronic records. The Arizona Supreme Court's most recent opinion on the public records law held that when an agency maintains a public record document in electronic form, the document's metadata is itself subject to disclosure if requested. Lake, 222 Ariz. at 551 ¶ 13. In reaching its holding, the Court noted multiple times the significance of the 2000 legislative amendment. See id. at 549 ¶9 & n.3 (quoting the definition of "records" in § 41-1350); id. at 550 n.4 (noting 2000 amendment and the addition of the reference to § 41-1350 when discussing that "the 1975 adoption of § 39–121.01(B) '[defined] those matters to which the public right of inspection applies more broadly.'").

The text of § 41-151.18 requires that the materials be "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" (emphasis added). Similarly, § 41-151.16(A) permits "[e]ach agency of this state" to maintain records using electronic media. The statutes' plain language makes clear that when the Legislature expanded the scope of public records to include electronic records, it did so only with respect to agency-maintained systems. Concluding otherwise would require going beyond the language of the relevant statutes and would make the 2000 amendment to § 39-121.01(B) superfluous. For the same reason, the language "public records and other matters" in § 39-121 does not itself cover electronic communications. If "other matters" itself covered electronic communications, then the 2000 changes to § 39-121.01 would be superfluous. Moreover, the Arizona Supreme Court said long before the 2000 legislative amendments that the breadth of § 39-121.01 "obviate[ed] the need for any technical distinction between 'public records' or 'other matters,' insofar as the right to inspection by the public is concerned." Carlson v. Pima Cty., 141 Ariz. 487, 490 (1984).

The Court's language in Griffis that "the nature and purpose of a document determine whether it is a public record," 215 Ariz. at 4 ¶10 (quoting Salt River Pima-Maricopa Indian Cmty. v. Rogers, 168 Ariz. 531, 538 (1991)), is not to the contrary. That language, like similarly broad language in other cases, was used in the context of limiting what documents on a government-issued electronic device or in the possession of an agency count as public records, not expanding it beyond those contours. Absent direction from the Legislature otherwise, it is improper to pull language out of its context in Griffis limiting the reach of the public records law in order to expand that statute's application.

The plain text of the relevant statutes contemplates government management of government systems alone. Several policy arguments bolster this conclusion. First, an agency does not have control of private electronic devices or social media accounts. Deeming all communications on such electronic devices or services to be public records subject to mandatory retention requirements under Arizona law would impose a duty on an agency that may be impossible to meet. See Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 152(1980) (Department of State did not improperly withhold documents that had been lawfully taken by Secretary of State and were housed outside of the State Department's control).

Second, public employees have a strong privacy interest in their personal electronic devices and social media accounts, which contain significant personal, private information. See, e.g., Riley v. California, 134 S. Ct. 2473, 2491 (2014) (noting special privacy concerns implicated by modern cell phones: "it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate"; "a cell phone search would typically expose to the government far more than the most exhaustive search of a house"); see also Ariz. Const. art. II, § 8, providing "broad protection" of "individual privacy." Mobilisa, Inc. v. Doe, 217 Ariz., 103, 112 (App. 2007). Classifying messages on personal electronic devices and social media accounts as public records would potentially expose the entire contents of employees' personal electronic devices and social media accounts to agency access and perusal as part of the public records response process.

Third, officers and public bodies are under independent obligations to record their work and otherwise maintain records. See, e.g., A.R.S. § 39-121.01(B), (C) (Officers and public bodies are obliged to keep records that are "reasonably necessary or appropriate to maintain an accurate knowledge of their official activities."). This record-keeping obligation precludes public officials from using private devices or accounts for the purpose of concealing official activities. 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. See, e.g., Bracy v. Gramley, 520 U.S. 899, 909 (1997) ("Ordinarily, we presume that public officials have 'properly discharged their official duties.'") (quoting United States v. Armstrong, 517 U.S. 456, 464 (1996)).

Fourth, other statutes provide for criminal penalties for destroying or tampering with public records. See, e.g., A.R.S. § 38-421 (providing for class 4 felony for officer who "knowingly and without lawful authority destroys" any record). If the scope of public records is expanded to include potentially all messages on private electronic devices and social media accounts, then this could create criminal liability for public employees without the notice provided by affirmative legislative action. Long-standing legal principals counsel against this type of extra-legislative expansion of criminal liability. See, e.g., Crandon v. United States, 494 U.S. 152, 158 (1990) (Rule of lenity is a "time-honored guideline" that "serves to ensure both that there is fair warning of the boundaries of criminal conduct and that legislatures, not courts, define criminal liability.")

Conclusion

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. Messages sent or received by a private electronic device or through a private social media account implicate the public official's duty to provide a reasonable account of official conduct, but do not themselves harbor public records. Interpreting the statute in this manner is consistent with the statutory text and is mindful of the separation of powers. It is the province of the Legislature, not of this office or the courts, to weigh considerations such as balancing public employee privacy rights with the need for government transparency and accountability.

Mark Brnovich

Attorney General

This opinion addresses only the specific request made, relating to electronic messages sent via "texting and social media sites," and does not evaluate the applicability of the Arizona Public Records Law, A.R.S. § 39-121 et seq, to any other types of potential public records.

Courts in other states have recently issued opinions on public-records related disclosure questions in their own states, interpreting their own state statues and constitutional provisions in light of judicial precedent. E.g., Nissen v. Pierce Cty., 357 P.3d 45 (Wash. 2015); City of San Jose v. Superior Court, 389 P.3d 848 (Cal. 2017). While these opinions may identify many of the same conflicting policy issues identified herein, the policy choices reached in those opinions do not provide a basis for going beyond the plain language of the pertinent Arizona provisions in answering the question presented: what electronic systems the Arizona Legislature has determined can contain public records under Arizona law. This is especially true given that, as noted below, it would be improper for this opinion to supplant the legislature's role as the arbiter of the policy balancing on this important question. Making private devices per se subject to government review should not be done without authorization in the law, flowing from a proper legislative balancing of constitutional and policy considerations.

The precise contours of this duty are not the subject of this Opinion and likely involve fact-intensive analyses.