Arizona Court holds that not all e-mail used by state workers is public information, and court should hold an in camera review to see if privacy claim is valid.

Paul Davenport  Associated Press

PHOENIX – Some of government officials’ e-mails can be withheld from public disclosure because they’re personal but courts shouldn’t allow that without first reviewing the disputed material, the Arizona Supreme Court ruled Wednesday.

Ruling in a case involving a newspaper’s demand for e-mails sent or received by a former county official who since has pleaded guilty to corruption charges, the Supreme Court said judges need to privately review officials’ e-mails that are withheld from public disclosure because of claims that they’re personal in nature.

While some e-mails are public records because they pertain to an official’s duties or conduct in office, others are personal and should be withheld, the Supreme Court said.

However, the mere claim that an e-mail is personal warrants holding an “in camera” private review in which a judge decides whether the claim is valid, Chief Justice Ruth McGregor wrote for the court.

“The party claiming that the disputed documents are not public records bears the burden of establishing its claim,” McGregor wrote. “If the party cannot establish that the documents are not public records, the trial judge can still consider whether privacy, confidentiality, or the best interests of the state outweigh the policy in favor of disclosure.”

The Supreme Court’s unanimous ruling came in a case involving a newspaper’s demand for e-mails sent and received on a Pinal County computer by former County Manager Stanley Griffis.

Griffis awaits sentencing in May after pleading guilty in January to six felony counts, including theft, fraud and tax fraud.

The Supreme Court’s ruling Wednesday ordered a trial judge to hold a review to determine the contents of e-mails which weren’t disclosed to Phoenix Newspapers Inc. under a public records request.

PNI, publisher of The Arizona Republic, had appealed a Court of Appeals ruling that said officials’ personal e-mails were the equivalent of telephone calls and don’t have to be disclosed.

The ruling “established some procedural safeguards for public requesters of information,” said David Bodney, a lawyer for PNI. “The Court of Appeals said these documents should be withheld based on Stanley Griffis’ say-so.

“The Arizona Supreme Court recognized that a public official, particularly a former top public official who has pleaded guilty to public corruption charges, cannot simply pronounce his public e-mails as purely personal without giving a party an opportunity to challenge that classification in court,” Bodney added.

However, Timothy Berg, a lawyer who helped Griffis in the Supreme Court proceeding, said he also was pleased with the ruling.

“We thought the important principle here was that personal e-mail, even if it belongs to a government employee and even if on a government computer, is still personal. It’s not a public record,” Berg said.

The Supreme Court ruling clearly gave lower courts “a roadmap on how courts are to handle these cases in the future,” Berg added. “It was an important public issue that they needed to settle once and for all.”

The Associated Press and several other media organizations filed a friend-of-the-court brief that urged the Supreme Court to overturn the Court of Appeals ruling. That ruling had the effect of allowing a public official “to unilaterally dictate what is and what is not a public record,” the brief said.

The e-mails in dispute dealt with such topics as online shopping and an African vacation.

PNI argued that all of the e-mails had to be disclosed to shed light on all of Griffis’ activities as a public official, but the Court of Appeals said they had no relation to his official duties and weren’t public records.

The Supreme Court ruling said Arizona’s public records defines public records broadly but that mere possession of a document by a public official or production of it with government-owned paper, computer or pen “does not by itself make that document a public record,” McGregor wrote.

“Under that analysis, a grocery list written by a government employee while at work, a communication to schedule a family dinner, or a child’s report card stored in a desk drawer in a government employees office would be subject to disclosure. The public records law was never intended to encompass such documents; the purpose of the law is to open government activity to public scrutiny, not to disclose information about private citizens,” McGregor wrote.

Griffis retired shortly after being placed on leave by the county Board of Supervisors in December 2005 when a sheriff’s investigation indicated that he spent county money on sniper rifles, scopes, ammunition, and equipment that officials said he kept for personal use.    

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