Both Laurie Roberts of the Arizona Republic, and that infamous gossip rag of the Plutocratic set in our great state, the Yellow Sheet Report, have both set forth the issue. From Roberts,
So a state regulator is regularly texting a utility executive, a pair of utility-friendly candidates and the head of a dark-money group that campaigned for those candidates. He then routinely deletes the text messages, despite the fact that such communications are public record.
And when questions arise about the content of those messages, we are told he's thrown away his cell phone. His state-supplied cell phone.
Convenient, isn't it?From the Yellow Sheet,
The Corp Comm’s letter to Dan Barr yesterday revealed for the first time that Stump had disposed of his cellphone and that he had been routinely deleting messages on that phone and on his current one. But David Cantelme, the outside counsel hired by the Corp Comm, maintained that there are no inconsistencies to the facts that have come to light. When asked why the public is learning of these facts only now, Cantelme said the commission answered questions as they were raised. “The deletion of text messages should come as no surprise to anyone, because that’s consistent with the document retention protocol published by the director of state archives,” Cantelme said. In his letter to Barr, Cantelme expressed confidence that Stump’s text messages were nothing more than “general correspondence” or “transitory materials.” When asked today how he can be so sure that’s the case, Cantelme told our reporter he arrived at this conclusion by first noting that texts are typically brief communications. “Point No. 1 is the nature of the medium,” he said. “Point No. 2 is this is the information I’ve been given, so I’m going to leave it at that.” When our reporter pointed out that there is no independent way to verify if the information he was given is correct, Cantelme replied that “the nature of the retention protocols depends on the individual officer to observe them, and that’s the way it’s been established so you have to take it as it is.”Well, since I'm not an attorney specializing in public records law in Arizona, I am reluctant to say whether (or NOT) Cantelme's point is legally valid. However, I can say that the director of the state archives isn't the Arizona Attorney General or the state Supreme Court. In other words, if the director of state archives is not generally concerned -- when writing policy for record retention -- about whether there is a legal or political reason for text messages to be preserved, it would only be because of perspective as a historian rather than as a legal advisor.
From the State Library's website,
The State Archives, located in the Polly Rosenbaum Archives and History Building, collects, preserves and makes available to the public and all branches of government, permanent public records, historical manuscripts, photographs and other materials that contribute to the understanding of Arizona history.That statement fosters a retrospective look at what has gone on, as opposed to evaluation of near real time records to determine if any law has been broken. But is that all the State Librarian or director of the State Archive has to say about it? Can it really be the case that the agency giving direction for preservation of public records would suggest, imply or otherwise specifically state that Arizona law provides a nonchalant mechanism to help a potential lawbreaker get away with his crimes?
Again, from the Yellow Sheet,
Cantelme also said there is no need to adopt a policy above and beyond the retention schedules outlined by the State Library’s director. He noted that the schedule for keeping public records on electronic media is essentially no different from the schedule for paper records. Arizona law delegates to the director of the State Library the authority to set rules for preserving and managing government records. The rules apply to electronic communication, including email correspondence and text messages.Well, not that you'd be surprised, but I would disagree with the slimy bastid. The State Librarian does have guidelines and several publications that demonstrate the ongoing development of policy to adapt to any new medium for potential public records (and text messaging apparently is new enough that policy hasn't been FULLY developed yet).
Notable quotes that would seem to shed some light on this situation, from a list of frequently asked questions,
Litigation and Records
7. What is the retention for any records that are involved in litigation? We are not always notified when the litigation ends so this is creating confusion. During the course of any public records request, litigation, audit or government investigation, the destruction of any corresponding records needs to be place on hold. Once the litigation, audit or government investigation is finished, then the records may be destroyed based upon their original retention period. Any records involved in litigation, audit or government investigation cannot be destroyed until it has been determined that the action has ended, and any related actions (appeals, etc.) have been completed. In order to destroy the records as presented in your email, someone from the Fire District will need to received documentation that the litigation has ended before any records can be destroyed. Without this formal notification that the litigation has ended, I would recommend that you NOT destroy the Records. (emphasis in original)And another, related to social networking records present additional issues for records retention because the medium is so new. (is text messaging a social networking mechanism?)
The Statutory requirements regarding Records Management of public records are never easy, and that is especially so for these records. You need to be prepared for these challenges, and aware of the difficulties you will face in complying with these requirements regarding SocNet records. Our Agency is aware of these difficulties, and that is our main reason for providing this Guidance. It is our hope that you will be able to think about these issues before you decide the extent of your involvement in SocNet /Web 2.0 – and take the necessary steps to ensure successful management of these records. And remember, e-mail has been around for over 15 years and we are all still trying to find the most efficient and cost effective manner for properly managing e-mail records.In the same document,
Title 41-1350. Definition of records
“In this chapter, unless the context otherwise requires, "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 section 41-1348, 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, or because of the informational and historical value of data contained therein. Library or museum material made or acquired solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference and stocks of publications or documents intended for sale or distribution to interested persons are not included within the definition of records as used in this chapter. (emphasis, though not in statute books, IS in the original as published by the State Library)So, not that I'm rendering any legal opinion or advice, because I am not. But I AM reading from a source Cantelme suggests provides Trash Burner Bob Stump a lawful way to get out of having to disclose records that he KNOWS (now and should have known when he engaged in those text message exchanges) likely will be subject to litigation.
Since Cantelme was writing to counsel for the Checks and Balances Project (Dan Barr), I'm confident Mr. Barr is already familiar with plenty of material that demonstrates just how full of it Cantelme really is. So, I won't ramble on about it.
I am also curious as to why local "journalists" who specialize in covering Arizona government aren't asking this kind of question and reporting on it. Laurie Roberts did make it pretty clear she thinks the situation stinks. But I don't know how deeply she investigated to discern whether or not Cantelme's guidance was legitimate.
Anyway, click this link to read the letter on which both Roberts and the Yellow Sheet reported. Of course, I think Cantelme's full of **it. I'll let you decide for yourself. However, his conclusion,
Under these circumstances, the Commission believes it has produced all public records responsive to the request made by Checks and Balances.Appears on its face to be dubious at best.