Arizona Senate Republicans refuse to turn over text messages between President Andy Biggs and other leaders regarding government business because the caucus does not consider the records public.
On July 14, the Arizona Capitol Times requested text messages involving leaders and head staffers in both the Arizona House and Senate in both the majority and minority caucuses. The request also included policies related to text message retention policies and procedures.
The House GOP, House Democrats and Senate Democrats have acknowledged the records are public and have agreed to turn over text messages among lawmakers. The three groups are moving toward complying with the public records requests and have also complied with the portion of the request related to policies and procedures.
Despite compliance from the three other groups, the Senate GOP has decided text messages between Biggs and five legislative leaders or staffers aren’t the public’s business.
“After careful consideration, we have determined that the items you requested from the Senate … between President Andy Biggs and other parties are not public records,” Senate GOP communications adviser Mike Philipsen wrote in a Sept. 9 email to the Capitol Times.
The records request asks for “any text messages, group messages and/or iPhone messages, third-party application messages including but not limited to WhatsApp and Snapchat, social media direct messages including but not limited to Twitter and Facebook” for the dates March 1 to April 10, 2015, between Biggs and Rep. Eddie Farnsworth, Biggs and Senate chief of staff Wendy Baldo, Biggs and director of operations Melissa Taylor, Biggs and Sen. Steve Yarbrough, and Biggs and Sen. Don Shooter.
Arizona Corporation Commissioner Bob Stump has been under fire by watchdog group Checks and Balances Project for texting with other commissioners, Arizona Public Service representatives and the heads of dark money groups. The D.C.-based group has so far been unable to access Stump’s messages, but was given a log of texts earlier this year. Attorneys for the Arizona Corporation Commission have not argued the texts aren’t public records, but said Stump’s phone was thrown away and some texts were deleted.
Philipsen’s denial appears to rely on the fact that Biggs’ phone is not publicly issued.
“Please be advised that in regards to all the items you requested, the Senate does not provide state-issued phones to any of its members,” Philipsen wrote.
Attorney Dan Barr, on behalf of the First Amendment Coalition of Arizona, wrote to Philipsen, asking the Senate GOP to reconsider its refusal of the request by Sept. 23 or potentially face a special action in Maricopa County Superior Court.
In the letter, Barr said Philipsen’s claim that text messages are not public records contradicts case law.
“Not surprisingly, you cited no authority or basis for this statement because it is an inaccurate statement of the law,” Barr wrote.
Barr cites a recent case in the Washington Supreme Court, Nissan v. Pierce County, that decided text messages used by public employees as part of their official duties are indeed public records, regardless of whether the state pays for the phone.
Two Arizona Supreme Court cases, Griffis v. Pinal County and Lake v. City of Phoenix, back up the case for text messages as public records. In the Lake case, the Supreme Court decided meta-data embedded in a public document constituted a public record. In the Griffis case, the Supreme Court decided emails are subject to public records laws if they have a “substantial nexus” to government.
“To be clear, the Arizona Capitol Times is seeking only those text and social media messages between Sen. Biggs and the five other people listed above that have a ‘substantial nexus to governmental activities.’ It is not seeking private messages that have little or nothing to do with the operation of state government,” Barr wrote to Philipsen.
Barr’s letter set a deadline of Sept. 23 for Philipsen to reconsider the Senate GOP’s contention that the text messages aren’t public, or the request would be considered a denial of the records request.
If there was no response, Barr wrote, “We shall take whatever action we deem appropriate, including the filing of a special action in Superior Court to protect our clients’ rights.”
Philipsen did not respond to Barr’s letter by email or by mail as of Sept. 24.