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Clinton-ing On the Comstock: Private Phone Use for Public Business

Hilary Clinton is not the first (or the last) politician who has used their private communication lines for public business.  In Comstock Residents Association v. Lyon County Board of Commissioners, the Nevada Supreme Court recently ruled that the Lyon County Commissioners must provide phone messages and emails from private cell phones and email accounts if the communications fall within the definition of a “public record.”  134 Nev., Adv. Op. 19, ___ P.3d ___ (March 29, 2018).

PUBLIC RECORD REQUESTS

Under Nevada’s Public Records Act, all “public records” of a government entity must be open for public inspection upon request, unless the record is classified as “confidential” under the law.  NRS 239.010(1).   The Comstock Residents Association made a public records request of the Lyon County Board of Commissioners after the board approved a zoning change to allow industrial development.  Lyon County and the Commissioners provided phone records, emails and other documents that were created on all public county devices but refused to turn over some records that were on the Commissioners’ private phones and emails.

The question the Nevada Supreme Court had to resolve was whether communications on private devices and accounts fell within the definition of “public records” under Nevada’s Public Records Act.  It’s answer:  “Maybe?”

ITS NOT WHERE THE RECORDS ARE, BUT WHAT THEY CONTAIN THAT MAKES THEM PUBLIC

Under Nevada’s Public Records Act, public records must “be open at all time during office hours to inspection by any person.”  NRS 239.010(1).  The County Commissioners argued that this language restricts Nevada’s Public Records Act to only those records that are maintained in government offices or on government devices.  The Nevada Supreme Court disagreed.

Other places in Nevada’s Public Records Act contemplate that the records might be in control of private entities.  See, e.g., NRS 239.0107(1) (allowing five days to compile public records from a private entity).  And, the Nevada Public Records Act specifically requires public entities who provide public services to allow members of the public to inspect records in their possession.  NRS 239.001(4).

Instead, the Nevada Supreme Court held that the appropriate question is not where the records are kept, but what they contain.  If the records concern government activity subject to a public records request, the records must be disclosed.

The Board tried to argue that records kept on personal devices and email accounts are not within county control to produce.  However, considering the fact that the commissioners themselves created these records…well, the Nevada Supreme Court rejected that ridiculous (albeit creative) argument.

NEVADA IS NOT OFF ITS ROCKER

The Nevada Supreme Court decision follows recent decisions on similar issues from our sister states.

In City of San Jose v. Superior Court, the California Supreme Court held that emails generated on the personal accounts and cell phones of city employees that discuss city business fall within California’s Public Records Act.  389 P.3d 848 (2017).

In Lunney v. State, the Arizona Court of Appeals held that public employee’s private cell phone records may fall within Arizona’s Public Records Law if the private phone was used to conduct public business.  779 Ariz., Adv. Rep. 6, ___ P.3d ____(Ariz. Ct. App. Dec. 7, 2017).

And, in West v. Vermillion, the Washington Court of Appeals held that a city council member’s private email account contained emails that must be disclosed under Washington’s Public Records Act.  384 P.3d 634 (2016).  Recently, in West v. Puyallup, the Washington Court of Appeals also held that posts on social media may constitute public records.  410 P.3d 1197 (2018).

Don’t be too alarmed, however.  Public records requests don’t cover the more, um, embarrassing reasons people use their private accounts.  In Pennsylvania Office of Atty Gen v. Bumsted, the Pennsylvania Commonwealth Court confirmed that pornography sent on a personal email account of a public official was not a “public record” because it did not involve public business.  134 A.3d 1204 (2016).

The take-away is that public business is public business, even when it is conducted on private devices and accounts.  If you don’t want your constituents to know about your Candy Crush addiction or Amazon order history, keep your personal and professional devices separate.