Mobile Devices and Public Records

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Most of us now communicate with others by using our mobile devices, even on a professional level. Some of the apps are designed to send messages that self-destruct after seconds, and with other apps, records can disappear when a phone breaks or is lost. That can be a problem when that communication is coming from a government official bound by open records laws. Dan Barr, an attorney with Perkins Coie, will discuss the use of mobile devices and the impact on public records.

TED SIMONS: Technological advances are changing the way public and private records are kept and accessed. Cell phone technology, for example, is featured in high-profile cases involving both the Arizona Corporation Commission and football star Tom Brady. Joining us now is Dan Barr, an attorney with Perkins Coie. Barr is involved in the investigation of Arizona Corporation Commissioner Bob Stump's text messages. Good to have you here. Thanks for joining us.

DAN BARR: Thanks for having me.

TED SIMONS: The impact of cell phones let's start with public records. Talk to us about that.

DAN BARR: Well, the law hasn't changed. The technology may have changed, but the law hasn't changed. I mean, public officials and public bodies have the duty to maintain their public records. And, you know, used to be the records would be maintained in the file drawer. Now, they're maintained on an e-mail server or in the cloud or a cell phone.

TED SIMONS: Are they actually maintained there? I mean, if I were to oh, I don't know destroy my phone, does that mean everything on that phone is gone?

DAN BARR: Well, it could be on the e-mail server and the like. My understanding of the cell phone is when sending a text message, even if you delete the text message or double delete it, it still remains on the cell phone. The metadata still remains there. That's the reason New England quarterback Tom Brady destroyed his cell phone, because there are thousands of text messages still on that cell phone, so he destroyed it on the day that the NFL interviewed him.

TED SIMONS: But if those text messages were sent and received, I guess we all think there's something up there, whether it's a cloud or the great who knows what, that it's all stored somewhere.

DAN BARR: Well, what everyone tells me and people who are far more knowledgeable about electronic messaging tell me is that electronic information never goes away. It's always some place. Whether it's e-mails, text messages, even Snapchat, which was created to disappear almost instantly so teenagers could hide what they were saying from their parents, that can be retrieved.

TED SIMONS: The public records influence here. The difference between my private phone, if I'm a public official, and my work phone?

DAN BARR: As a matter of law, there's no difference. It's what you're doing with it. So if you're using your work phone to send say private e-mails to family members or you're participating in the NCAA tournament pool or something like that, that's not a public record. To be a public record, what the Supreme Court said, there has to be a nexus between what your job is and what the record is. So it doesn't matter if it's a public or private phone. If I'm using my private phone for work reasons, that's a public record.

TED SIMONS: So if you are using your private phone for work reasons and I get to request some information out of that, even though it's your private phone, can I get that information?

DAN BARR: Absolutely. And the converse is also true. If you're using your public phone for private reasons, you can withhold private messages under the public records law.

TED SIMONS: Can you do that by saying I can give you this, this and this, I don't want to give you this, this, and that.

DAN BARR: If you have a good reason under the public records law, which is you can show the probability of a specific material harm to privacy, confidentiality, or the best interest of the state.

TED SIMONS: But even the privacy aspect will be compromised somewhat, if I want to text a dark money group, and I want to do --

DAN BARR: The things you come up with.

TED SIMONS: I threw it out there. If I do that, okay. It's not a public record but you know, don't you, that that effort, that communicate was made, whether you do something with it or not, that now is known correct?

DAN BARR: Sure, sure. I think the message is when people are using electronic communications, there's always a record of it someplace and it never goes away. What people have told me about text messages on the cell phone is the only way to destroy them is with a sledgehammer or a blowtorch.

TED SIMONS: And you have to be careful if you have sledgehammer or blowtorch in hand because we're talking about possibly destroying evidence aren't we?

DAN BARR: That's what Tom Brady did, and then people draw the inevitable conclusions from that, why would you destroy your cell phone? Who destroys their cell phone? If it's outdated, you just trade it in for an updated phone.

TED SIMONS: And we've heard that law enforcement is collecting data, the NSA, we've gone through all of that, as well. Again, it seems as though -- is that information, that law enforcement collects, is that public information?

DAN BARR: Well, what the public records law is -- does a public officer or public body create it? If it's just you or me creating it and the NSA has taken it, that information is private information that's held by the NSA. Of course, you could make a privacy act request to the NSA for that information and then have that fight over that but just because somebody takes that information from you doesn't change the public or private character of it.

TED SIMONS: And again you're involved in the investigation regarding corporation commission Bob Stump. His text messages and his phone emails and thus on a previous phone that was destroyed, correct?

DAN BARR: That's correct. He had an IPhone 3 that was originally issued to him by the corporation commission. It was a corporation commission phone in 2010. He had that phone until October 2014, where he said I destroyed the phone, which is I don't know why he would destroy the phone, maybe he would just hand it in but he didn't do that, and then he started using an iPhone 5, which had been issued to him by the corporation commission a year earlier but for some reason he didn't use it. The issue here is if commissioner Stump transferred his contacts and other information from his iPhone 3 to his iPhone 5, which is what all of us do when we get a new phone, then everything transferred, all the metadata, all the texts, everything. So if he did what the rest of us do in the normal course of getting a new phone, then the text messages that he had on his iPhone 3 should be on his IPhone 5.

TED SIMONS: That iPhone 3 was his personal phone? Or issued to him?

DAN BARR: Both of these phones were issued to him by the corporation commission.

TED SIMONS: Well, should you, should you be destroying machinery that has been issued to you from the state?

DAN BARR: I would think not. That's one of the questions that Commissioner Stump has to answer to.

TED SIMONS: Because I mean, it would stand to reason if the state issues you machinery and you use it on the job, that's not for you to destroy.

DAN BARR: Well, sure and just think about what the rest of us do. I have a phone and I go get a new phone, I don't destroy it. I just trade it in and people do whatever they want with it.

TED SIMONS: So when Tom Brady, going back to that one, destroys his phone on the same day that they ask for an interview of the guy, I mean, you know, two and two...

DAN BARR: The conclusions are inevitable.

TED SIMONS: Are new laws, are new regulations, is something needed for this? Are we becoming so technologically advanced that public records law in particular is starting to lag?

DAN BARR: I don't think so. I think there's some public officials, maybe this was the case with commissioner Stump, who thought oh, I'll evade the public records law, instead of using my official e-mail account, I'll text people instead. And then according to his lawyer he almost immediately deleted these texts. Whether you use texting or e-mail or I don't care if you write it on parchment, the law is the same. You have a duty to maintain those records. And what some public officials have done here by texting is they've made it more difficult for them to maintain public records. Maybe deliberately so but that doesn't absolve them of the duty and fortunately, the technology is such where the e-mails and the texts still reside on the phone, despite their efforts to destroy them.

TED SIMONS: Interesting stuff. All right, Dan, good to have you here. Thanks for joining us.

DAN BARR: Thanks for having me.

Dan Barr : An Attorney with Perkins Coie

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