Some of what was found on Bob Stump’s cell phone is a public record, the attorney general’s office said Tuesday.
But whether what was found in texts sent and received by the state utility regulator ever will see the light of day remains unclear.
On Tuesday, attorneys for all side provided a list of what was recovered from Stump’s phone to Maricopa County Superior Court Judge Randall Warner. There were several hundred texts listed, though many appear to be duplicate as the attorney general’s office used multiple computer programs to find messages that Stump conceded he had deleted from the phone he was issued as a member of the Arizona Corporation Commission.
Out of all those, there appears to be nothing recoverable that falls within the dates in the public records request by the Checks and Balances Project.
Tim LaSota, attorney for Stump, said that should be the end of it. And LaSota, along with commission attorney David Cantelme, now wants the lawsuit dropped.
But Dan Barr, who represents the Checks and Balances Project, said not so fast. He thinks there’s more information to be had.
And the report given to Warner raises a bigger issue.
If the judge concludes the attorney general is correct — that there were text messages that could fall within the definition of the public records law — it raises the question of whether Stump violated that law by deleting them.
But even that is not a black and white situation.
Cantelme has argued that even texts that might have been public do not have to be preserved forever. He said once the usefulness of the information has passed, like someone asking for an appointment, it can be deleted.
Yet if it turns out the deleted messages were recovered — and if Warner determines they are public — then anyone could ask to see them.
The dispute that now goes to the judge centers on that question of what is a public record.
It is undisputed that all of the texts were recovered from Stump’s state-issued phone.
Courts have said, however, the fact that a document or message is on a government device does not determine whether it is public. Instead, they said the deciding factor is whether it deals with public business.
So a text to a friend proposing a lunch date would not be public, even if sent from a state-issued phone.
Stump has contended nothing he ever deleted was public.
But Mia Garcia, spokeswoman for Attorney General Mark Brnovich, said the analysis by the agency’s attorneys found that some of the messages that were recovered did not meet the legal test to exempt them from disclosure.
LaSota and Cantelme disagree, which is why the issue goes to Warner.
Garcia acknowledged most of those recovered messages do not fall within the dates requested by the Checks and Balances Project.
Those dates were ahead of the 2014 Republican primary where Stump was backing two candidates for the commission — Stump himself was not up for election — over two others running on a platform of more solar energy. And a log of texts showed repeated texts between Stump and not only the candidates but also the head of a group spending money from anonymous donors to help them get elected, and an executive of Arizona Public Service.
But Garcia said Brnovich believes that the court should look at everything recovered, even those not specifically requested by Barr, to put an end to the question of what the public is entitled to see of the deleted messages.
“We like this resolved as quickly as possible,” she said.
The findings also open the door to Barr — or anyone — expanding their public records request to go beyond the specific dates to petition to have what was found released.