Arizona Supreme Court holds that a public entity invoking the “best interests of the state” exception to the public records law need not prove, as a discrete element, a probability of specific, material harm, and that an appellate court reviews de novo whether the established evidence demonstrates that those interests outweigh the presumption favoring disclosure.

Arizona’s public records law provides that public records “shall be open to inspection by any person at all times during office hours.” A.R.S. § 39-121. A qualifying public record carries a strong presumption of disclosure. But access may be restricted where “the interests of privacy, confidentiality, or the best interest of the state in carrying out its legitimate activities outweigh the general policy of open access.” Carlson v. Pima County, 141 Ariz. 487, 491 (1984).

The case arose from a public records request by the Goldwater Institute to the City of Phoenix for draft memoranda of understanding (MOUs) and bargaining proposals exchanged during collective bargaining between the City and the Phoenix Law Enforcement Association (PLEA), the union representing City police officers below the rank of sergeant. The City withheld the drafts and proposals under the “best interests of the state” exception established in Carlson, asserting that disclosure during ongoing negotiations would chill candid exchange and hinder bargaining.

Goldwater filed a statutory special action to compel production. After an evidentiary hearing, the superior court entered judgment for the City, finding that its evidence established “potential material harm”—the potential for undue pressure, impasse, and collusion—that outweighed the presumption of disclosure, though the court limited the withholding to the period until the next MOU was finalized.

The court of appeals found no reversible error, reasoning that the trial court had recited the correct standard and had referenced both a “probability” and a “potential” for material harm. It nonetheless remanded for in camera review, observing that unchanged, boilerplate provisions already contained in publicly available prior MOUs would not appear to be protected.

The Arizona Supreme Court granted review on two issues: a public entity’s burden to show specific, material harm under the “best interests of the state” exception; and an appellate court’s role in reviewing a trial court’s application of the Carlson balancing test.

On the first issue, the Court held that a public entity invoking the exception need not prove, as a discrete threshold element, that disclosure will probably (more likely than not) cause specific, material harm. Carlson established a balancing test, not a rigid set of elements, and the Court’s precedent imposed no mandatory threshold that harm will probably occur before a court may undertake the balancing. A rigid rule, the Court reasoned, could force a public entity to release records and suffer the harm before invoking the exception, and would ignore cases where harm is unlikely but potentially catastrophic.

The exception is not, however, satisfied by conclusory or self-serving assertion: the degree of likelihood of specific, material harm cannot be “de minimis, vague, or purely speculative,” and courts must hold public entities to that burden. Carlson’s test thus weighs several factors the resisting party must show—a specific, material harm; the degree of likelihood it will occur; and a causal connection between disclosure and the harm. The Court added that, for a municipality, the “best interests of the state” reaches the interests of the government and the people generally, but the municipality need not show harm to the entire State or its people as a whole.

On the second issue, the Court held that an appellate court defers to the trial court’s factual findings unless clearly erroneous, but reviews de novo the court’s legal conclusion under Carlson—independently determining whether the established evidence supporting non-disclosure outweighs the presumption of disclosure.

The Court reversed the superior court’s judgment, vacated the court of appeals’ opinion, and, emphasizing the value of in camera review, remanded for the City to give the trial court both unredacted and redacted versions of the responsive records, noting that redaction and partial disclosure may be a practical alternative to withholding entire documents. And because the City’s asserted harm was tied to ongoing negotiations, any delay in disclosure must be limited to the duration of that harm—if the next MOU is already final, the City must produce the ordered proposals without awaiting the end of litigation.

Justice King authored the Court’s opinion, in which Chief Justice Timmer, Vice Chief Justice Lopez, and Justices Bolick, Beene, Montgomery, and Berch (Ret.) joined. Justice Cruz was recused from the matter.

Posted by: Andrew Haynes