Arizona Supreme Court clarifies the standard of review, remedies, and attorney fee analysis under Arizona’s public records law.

The plaintiff, a tenured English professor at the University of Arizona, submitted a series of public records requests to the University concerning its hiring and appointment practices. The University produced some records, redacted others, and withheld some outright, citing confidentiality and privacy concerns. It also denied the plaintiff’s request for an audio recording of a committee meeting, offering only to let him listen without a copy. After the plaintiff retained counsel, the University produced additional records but stated that the audio recording was “no longer available.” The plaintiff filed a statutory special action. The superior court ruled in favor of the defendant, the Arizona Board of Regents, and denied attorney fees. The court of appeals affirmed.

The Arizona Supreme Court reversed in part on three issues. First, on the standard of review, the court of appeals had held that trial courts should review de novo whether a public entity has invoked a legally sufficient basis for withholding records, but should review the entity’s document-by-document decisions only for abuse of discretion. The  Court rejected that second step, holding that whether any particular document is properly withheld or redacted is itself a legal question subject to de novo review. A deferential standard, the Court explained, would undermine the strong presumption of disclosure embodied in Arizona’s public records laws.

Second, on the destroyed audio recording, the Court held that when a public entity destroys a record after receiving a request for it, that destruction operates as a denial. Because the recording was the subject of a pending request, it retained legal value and could not be destroyed under an internal retention policy. Although the plaintiff could not recover money damages because he had not filed a notice of claim under A.R.S. § 12-821.01(A), the Court held that he was still entitled to a judicial determination that the defendant violated its statutory duties—a determination relevant to the attorney fee analysis.

Third, on attorneys’ fees, the Court held that although a lawsuit must be filed to trigger an award under A.R.S. § 39-121.02(B), the phrase “substantially prevailed” is not temporal and reaches records the public entity produced before suit was filed. A contrary rule would allow public entities to stonewall requesters right up to the moment of filing without financial consequence. The Court remanded for the trial court to conduct the withholding and redaction decisions de novo.

Justice Bolick authored the opinion, joined by Chief Justice Timmer, Vice Chief Justice Lopez, and Justices Beene, Montgomery, Cruz, and Berch (retired). Justice King was recused.

Posted by: Allie Karpurk