ACLU v. Ariz. Dept. of Child Safety – 6/9/2016
Arizona Court of Appeals Division One holds that a public entity must search electronic databases in response to public records requests but has no obligation to create new records.
In 2013 and 2014, the ACLU submitted several public records requests to the predecessor of the Department of Child Safety (“DCS”). Some of the requests asked DCS to tally and compile statistical information and percentages based on information contained in its electronic case management system, known as CHILDS. The ACLU ultimately filed a special action in the superior court asking for an order requiring DCS to respond to its outstanding requests. The superior court found that DCS would have had to write a new software program to obtain some of the requested information or that it would have had to research and analyze data to compile statistics. This, the superior court reasoned, would have required DCS to create new public records where none previously existed. Accordingly, the superior court held that DCS was not required to respond to such requests because they did not seek existing public records but instead required DCS to create new public records. The ACLU appealed.
The Court of Appeals affirmed in part and reversed in part. First, the Court agreed with the ACLU’s argument that the CHILDS electronic system is a public record. It explained that the term “records” encompasses not only papers but also “other documentary materials, regardless of physical form or characteristics.” Next, the Court of Appeals held that although an agency must search its electronic databases for public records, it does not have to tally and compile previously untallied and un-compiled information in response to a public records request. Public records do not become immune from production because they are stored electronically, the Court noted, and agencies that elect to store information electronically must also assume the responsibility of producing such information in response to public records requests. But compiling and tallying information from an electronic database is not the same as searching. The Court noted that many federal and state courts considering similar issues have held that public records laws do not require agencies to compile information that has not previously been compiled and that such requests are not requests for existing records. Because the ACLU’s requests would have required DCS to tally and compile aggregate information from CHILDS and thereby create new records, the Court concluded that DCS was not required to respond to those particular requests.
Judge Norris authored the opinion of the Court, which was joined by Presiding Judge Thompson and Judge Portley.