responding to requests under the arizona public records law
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Responding to requests under THE ARIZONA PUBLIC RECORDS LAW. Karen Hartman-Tellez, Civil Rights Compliance Section. Purpose of the Public Records Law. - PowerPoint PPT PresentationTRANSCRIPT
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.