The Arizona Corporation Commission is obtaining software designed to help ensure the public has a chance from now on of getting access to text messages of state utility regulators.
But for the moment it will be up to the regulators to decide whether to use it.
Jodi Jerich, the commission’s executive director, has purchased licenses for a product that copies the messages from a phone directly onto the user’s state computer. More to the point, anything copied onto the computer is then automatically backed up to a file server, meaning they are archived.
Put simply, once a text is copied to the computer, there would be no excuse for saying it’s not available.
Jerich said she began researching it after there were public records requests for texts sent to and from Bob Stump on his state-issued phone around the time of the 2014 Republican primary.
So far the state has been unable to comply, as an attorney for the commission said Stump “routinely” deleted texts. More to the point, David Cantelme said Stump has since discarded the phone.
Efforts remain underway to see if those deleted texts somehow remained on the phone and then were transferred to a new phone Stump was issued. Jerich has requested the assistance of the Phoenix Police Department in retrieving the data after the state Department of Public Safety refused.
But at this point the chances of recovery remain questionable.
The software Jerich is installing could make such issues go away – assuming commissioners are willing to use it.
Jerich said all five commissioners are currently in New York at a conference of utility regulators. She said none have been briefed on her plans.
“I believe the commission may be one of the first, if not the first, Arizona state government entity to provide this safety net for text message technology,” Jerich said.
Most other state agencies fall under the purview of Gov. Doug Ducey. Press aide Ann Dockendorf said no one in the governor’s office is familiar with this software.
Arizona’s Public Records Law requires agencies and officials to keep copies of all documents and communications and make them available on request. But as the situation with Stump demonstrates, that has become increasingly difficult with messages flying back and forth between cell phones.
Stump has insisted the 76 texts between him and Scot Mussi of the Arizona Free Enterprise Club in the nearly two months before the 2014 GOP primary had “nothing to do with the business of the commission.”
“Scot and I probably discussed, a year ago, his wedding plans, arranging a double-date to the symphony,” Stump told Capitol Media Services.
The question, however, is whether Stump discussed Mussi’s bid to financially help two Republicans running that year for the commission – Stump was not up for election – even as he was communicating with the candidates.
Verizon Wireless doesn’t keep texts beyond five days. And with Stump having tossed the phone, the content may be gone.
The software Jerich is installing on the commissioners’ computers this week is designed to avoid just that kind of situation in the future by having texts downloaded onto the user’s computer and, ultimately, into the state’s file server.
For the moment, though, compliance by commissioners will be voluntary. Jerich said that makes it quicker than crafting a formal policy which would require a commission vote.
It also is not foolproof: A commissioner still could delete text messages from his or her phone before linking it to the state computer, meaning no backup and no public record.
Even with those limits, Susan Bitter Smith, the current commission chair, likes the idea.
“There’s no one on the commission that’s not trying to be transparent and forthcoming,” she said. “And if there’s new technology that allows us to do that, we want to do it.”
Nor is she concerned that commissioners will purposely delete messages they don’t want the public to find.
She pointed out that while Verizon does not keep actual texts it does maintain a log of each and every incoming and outgoing message and which number each comes from or goes to.
“So if there’s deletions that don’t match the call record … that’s really a signal there’s a problem,” Bitter Smith said.
The Arizona Supreme Court has ruled that the mere fact that a state-issued phone is used for a communication does not make everything on it a public record. The same is true for state-issued computers.
Put another way, the fact a public official uses a state-issued phone or computer to send or receive personal messages does not make them public.
But the high court also ruled that any dispute over whether specific records are in fact public must be resolved by a judge. And that judge actually has to review the records at issue.