RESPONDING TO REQUESTS UNDER

THE ARIZONA PUBLIC RECORDS LAW

Karen Hartman-Tellez, Civil Rights Compliance Section

Purpose of the Public Records Law Allows citizens to monitor their

government. E.g., Phoenix Newspapers, Inc. v. Keegan, 201 Ariz. 344, 351, 35 P.3d 105, 112 (Ct. App. 2001) (“The core purpose of the public records law is to allow the public access to official records and other government information so that the public may monitor the performance of government officials and their employees.”)

Designed to lead to an informed and engaged electorate

The news media stands in the shoes of the public due to its unique ability to disseminate information widely

Strong Presumption of Openness “Public records and other matters in the

custody of any officer shall be open to inspection by any person at all times during office hours.” A.R.S. § 39-121

“Doubts should be resolved in favor of disclosure.” Ariz. Op. Atty. Gen’l R75-0781

What Is a Public Record?

Broadly defined -- the statute requires public access to “public records and other matters”

“[A]ll records . . . reasonably necessary or appropriate to maintain an accurate knowledge of . . . official activities and any . . . activities which are supported by [public] monies.” A.R.S. § 39-121.01(B)

Includes materials relating to public business not created by a public official, but in the official’s possession

What is a Public Record?

“[D]ocuments having a ‘substantial nexus’ with a government agency’s activities.” Griffis v. Pinal County, 215 Ariz. 1, 4, 156 P.3d 418, 421 (2007).

“[C]ontent-driven inquiry.” Id.

Includes hard copies and electronic records, including metadata. Lake v. City of Phoenix, 222 Ariz. 547, 551, 218 P.3d 1004, 1008 (2009)

Sole exception -- documents of a “purely private or personal nature.” Griffis, 215 Ariz. at 4, 156 P.3d at 421

Prompt Disclosure Required

Public official must “promptly furnish” requested copies of public records. A.R.S. § 39-121.01(D)(1)

Failure to promptly provide access to public records is “deemed deni[al]” of access. A.R.S. § 39-121.01(E)

No definition of “prompt,” but public official should exercise reasonable diligence in searching for, redacting if necessary, and producing records

Examples of what is not prompt: Phoenix New Times, LLC v. Arpaio, 217 Ariz. 533, 177 P.2d 275 (Ct. App. 2008)

Bases for Withholding Records Unlike FOIA, no statutory exemptions in

the Public Records Law Courts have identified three bases for

nondisclosure Confidentiality Privacy Best Interests of the StateCarlson v. Pima County, 141 Ariz. 487, 491,687 P.2d 1242,

1246 (1984)

Confidentiality

Statutory declarations that records are not available for public inspection

Examples: Auditor General’s working papers and audit files, A.R.S. § 41-1279.05; information or evidence provided to AG in connection with a consumer fraud investigation, A.R.S. § 44-1525

Arizona Agency Handbook, Chapter 6, Appendices 6.1 and 6.2 list statutory confidentiality provisions by subject matter and number

Privacy Interests

“The Public Records Law serves the primary purpose of ensuring that the people are able to monitor the activities of their government, not the lives of their fellow citizens.” Schoeneweis v. Hamner, 223 Ariz. 169, 175, 221 P.3d 48, 54 (Ct. App. 2009)

When requested records relate to performance of important governmental functions, the “interest in disclosure is strong and privacy interests must often yield.” Id.

Examples of Privacy Interests Family’s privacy interest in anguished cries of injured

child overcame public interest in 911 audio recording. Belo v. Mesa Police Dept., 202 Ariz. 184, 188, 42 P.3d 615, 619 (Ct. App. 2002)

Teachers’ interest in protecting themselves from identity theft or unauthorized access to bank accounts or other personal information overcame public interest in access to their birthdates. Scottsdale Unified Sch. Dist. No. 48 v. KPNX Broad. Co., 191 Ariz. 297, 302, 955 P.2d 534, 539 (1998)

Minor sexual assault victim’s name should be redacted from notice of claim before release. Phoenix Newspapers, Inc. v. Ellis, 215 Ariz. 268, 274, 159 P.3d 578, 584 (Ct. App. 2007)

Best Interests of the State

The “overall interests of the government and the people.” Keegan, 201 Ariz. at 349, 35 P.3d at 110

Examples: Interest in attracting and selecting the best

candidates for high-ranking public positions. Ariz. Bd. Of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 258, 806 p.2d 348, 352 (1991) (candidates for ASU presidency)

Administration of the AIMS Test. Keegan, 201 Ariz. at 347, 35 P.3d at 108

Balancing Test

Must weigh the public interest in access against the particular privacy or state interest at stake

Burden of justifying nondisclosure is on the public official

To overcome the presumption of openness, must show “the probability that specific, material harm will result from disclosure.” Mitchell v. Super.

Ct., 142 Ariz. 332, 335, 690 P.2d 51, 54 (1984) “Global generalities” are insufficient to override

the public interest in access. Cox Ariz. Publ’ns, Inc. v.

Collins, 175 Ariz. 11, 14, 852 P.2d 1194, 1198 (1993)

Options Short of Non-Disclosure Even where privacy or state interests justify

non-disclosure of portions of a record, the public official has a duty to redact the information necessary to protect those interests and release the remainder. Judicial Watch v. City of Phoenix, 228 Ariz. 393, 396, 267 P.3d 1185, 1188 (Ct. App. 2011).

In camera review may be used to determine whether (a) documents are public records or (b) the balance of interests supports non-disclosure. Griffis, 215 Ariz. at 5, 156 P.3d at 422; Ellis, 215 Ariz. At 274, 159 P.3d at 584.

No Liability for Good Faith Disclosure Public officials are entitled to a qualified

privilege from tort liability for their disclosure of public records. Carlson, 141 Ariz. At 491-92, 687 P.2d at 1246-47

A judgment call based on the relative weight of the interest in public access vs. privacy or state interests is privileged

The privilege is lost if the public official acts with malice or ill will. Id.

Karen Hartman-Tellez, Civil Rights Compliance

Joe Mikitish, Environmental Enforcement

Rex Nowlan, Agency Counsel

Discussion

Public Records Request No. 1 Print media requested any correspondence,

documents, or investigation reports relating to Company X, from January 1, 2007 to June 14, 2012. Records in AG’s custody included: Documents given to AG by its client agency

for the purpose of determining whether an enforcement action was appropriate

Communications between AG and client agency

Settlement communications with Company X

Public Records Request No. 2 Television station requested response

team’s videotape of violent incident in a state prison in which a prisoner sustained serious injury.

Public Records Request No. 2 Television station requested response

team’s videotape of violent incident in a state prison in which a prisoner sustained serious injury. What if the videotape reflects the response

team’s reaction to a prisoner’s suicide attempt?

What if the deceased prisoner’s family does not object to release of the videotape on privacy grounds?

Public Records Request No. 3 Company A requested the procurement

file for a bid won by Company B. In the file are several documents that Company B has marked as confidential and proprietary, including ones containing some of Company B’s financial information.