AG: City of Richmond didn’t violate Open Records request from station requesting Commissioner Arnold’s cell phone records

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Article Courtesy of The Berea Citizen

Attorney General Daniel Cameron has ruled the City of Richmond didn’t violate the Open Records Act when it denied the WEKU 88.9 FM radio station access to City Commissioner Krystin Arnold private messages on her cell phone.

The station submitted three requests, including one seeking “of all written communications, including text messages, exchanged between a city commissioner and other city officials regarding the city commissioner’s presence in Washington D.C. on January 6, 2021.”

In its request, WEKU sought records from Jan. 1-Feb. 18. The city did, however, provide a cell phone bill from the aforementioned dates from Arnold’s city-issued cell phone.

In its report the Attorney General’s office stated that, “copies of all communications sent from the city commissioner’s City-owned cell phone; all communications sent and received by the city manager to either the city commissioner’s City-owned or personal cell phone; and any communications sent from the city commissioner’s Cityowned cell phone to her personal cell phone between January 1, 2021, and February 28, 2021. The Appellant also sought a written explanation for why the City previously claimed that it did not possess text messages exchanged on the city commissioner’s City-owned cell phone when the cell phone bill the City provided proved that such text messages should exist.”

In a “timely response” the AG stated “the city commissioner provided access to her City-owned cell phone, that it was inspected by IT staff, and that there were no text messages stored on the device for this time period . . . the City has no other means to retrieve messages from the phone.”

Regarding the city commissioner’s personal cell phone, and the city manager’s cell phone, the City claimed that neither are a City-owned phone, “and thusly the City is not the custodian of record for these devices.” In support of its claim, the City cited 15- ORD-226.”

The station then sent a direct request to Arnold asking that she “provide all text messages on her City-owned phone from January 1, 2021, to May 4, 2021. The (WEKU) further sought any text messages related to the city commissioner “in her capacity as a City of Richmond elected official or any texts related to [her] duties as an elected official” on her personal cell phone. Although the Appellant submitted the request directly to the city commissioner, the City’s Record Custodian responded on behalf of the city commissioner and stated that the Appellant’s request was improper. The Records Custodian stated that the Appellant should resubmit its request directly to the City’s Record Custodian.”

In a response appeal, the station considered Arnold a “public agency” and that she produce “all responsive records in her possession — on her personal and city-issued phone.” The Appellant (WEKU) further claims that the City failed to adequately explain 21-ORD-146 Page 3 why text messages on City-owned cell phones were deleted. Finally, the Appellant claims that the city commissioner was required to personally respond to the request submitted to her, and that the City violated the Act when it responded to Appellant’s third request on behalf of the city commissioner.”

The City didn’t dispute that text messages in city-owned devises are of public record, but added, “the city claims that no responsive records exist on the city commissioner’s City-owned cell phone. Once a public agency states affirmatively that requested records do not exist, the burden shifts to the requester to make a prima facie showing that the requested records do exist.”

The station then requested a prima facie showing that “text messages were exchanged on the city commissioner’s City-owned cell phone, because billing records confirm such communications were exchanged.

“The City conducted an adequate search for these communications because it searched the city commissioner’s City-owned cell phone, which is where responsive records would be located if such records existed. When the Appellant asked the City to explain why the requested communications no longer exist, the City explained that the records custodian “has no knowledge of how or why messages were deleted from this phone” but that under the City’s record retention policy, “non-business communication[s] can be destroyed immediately.”

“In sum,” the report said. “the text messages on the city commissioner’s City-owned phone are public records, but the text messages on her private phone are not. The distinction is that public funds are spent to procure the former, whereas public funds are not spent to procure the latter.”