Arizona Court of Appeals Division Two holds that redacted versions of police records must be disclosed under Arizona’s public records law if the records contain both sensitive and non-sensitive information.

Beau Hodai requested public records from the Tucson Police Department relating to cell phone surveillance tracking technology called “Stingray.”  Hodai sought information on the Department’s use of Stingray; communications about Stingray’s purchase, use, and maintenance; and communications between the Department and Stingray’s manufacturer. The Department gave Hodai four redacted documents concerning Stingray’s purchase but refused to disclose any other information.

Hodai made two further requests for similar documents without success.  Hodai then filed a statutory special action requesting an order directing the Department to provide responsive records.

During the pendency of the special action, the Department disclosed that it had located Stingray training materials, authorization forms, and an example of the raw “data dump” received from Stingray during an investigation.  The Department further disclosed that it was aware of five criminal investigations (four closed and one open) in which Stingray had been used.  The Department provided Hodai the four closed investigation reports, but refused to produce the other materials on grounds that disclosure would not be in the best interests of the State.  After inspecting the withheld materials in camera, the trial court ruled that the Department properly withheld the remaining documents. 

The Court of Appeals affirmed in part and reversed in part.  The Court agreed that most of the training materials, the open investigation report, and “data dump” contained sensitive information which outweighed the presumption in favor of disclosure.  However, the Court determined that the trial court erred when it found that all of the training documents contained sensitive information.  The Court found that one of the documents contained both sensitive and non-sensitive information and that the sensitive information could be redacted without compromising the government’s ability to keep technological information about Stingray secret.

The Court also agreed with Hodai’s argument that the Department failed to promptly provide the four closed investigation reports as required by A.R.S. § 39-121.01(D)(1), and thus wrongfully denied him the records under § 36-121.01(E).  The Court noted that there was no evidence the records would have been difficult to locate and promptly disclose and thus the 8- to 10-month delay without explanation from the Department was not prompt. 

Judge Miller delivered the opinion; Chief Judge Eckerstrom and Judge Espinosa concurred.