Arizona Court of Appeals, Division Two, holds that Arizona Attorney General did not adequately respond to a public records request.

An outside organization submitted a public records request to the Arizona Attorney General seeking, from January 2020 forward, all communications between the Attorney General’s office and an outside non-profit group, any relevant engagement letters, and communications related to the Attorney General’s fake-electors investigation. The Attorney General responded by producing some responsive documents dated January 2023 and later, as well as an index of withheld documents. The index contained two entries covering 50 documents, which the index explained were withheld on the basis of attorney-client privilege or the attorney work-product doctrine.

The organization filed a special-action complaint, alleging that the Attorney General had not produced all documents responsive to its request and arguing that the Attorney General’s index of withheld documents was insufficient.

The trial court held an evidentiary hearing to assess the completeness of the Attorney General’s response. At that hearing, the Attorney General called the employee responsible for responding to the public records request as a witness. That employee testified that they did not perform an independent search, but produced the same documents produced in response to a previous, similar request. The employee also testified that they limited the search to the time period after January 2023, rather than the time frame requested, because the fake-electors investigation would not have started before then. After the evidentiary hearing, the trial court determined that the Attorney General had adequately responded to the public records request and entered judgment in her favor. The organization appealed.

The Arizona Court of Appeals vacated the trial court’s order and remanded for further proceedings. The Court first addressed the Attorney General’s index, which it held was insufficient because it did not include specific assertions of why the withheld documents were privileged. Nor did it give other identifying information, such as dates or senders and recipients of the communications, that would have allowed the organization to test the privilege assertions. This, the Court concluded, was insufficient, and so the Attorney General had failed to make a prima facie showing of privilege. In reaching that conclusion, the Court rejected an argument that the public records request statute allowed for a less detailed privilege log than under Arizona Rule of Civil Procedure 26; relying on Fann v. Kemp, 253 Ariz. 537 (2022), the Court explained that the Supreme Court has already directed public entities to comply with Rule 26 standards when responding to public records requests.

In the same vein, the Court also concluded that the Attorney General’s search for responsive documents had been insufficient. Because Arizona has a strong presumption in favor of disclosure of public records, a public entity may only limit its search for responsive documents if the administrative burden in locating and disclosing them is too high, or if there is another reason to protect them from disclosure. Here, the Attorney General had not demonstrated that either circumstance applied, and so the trial court had erred in concluding that the Attorney General’s searches had been adequate.

Although the organization prevailed on appeal, the Court remanded for further proceedings. It was thus too early to determine who the prevailing party was, and the Court consequently denied attorneys’ fees on appeal.

Judge Sklar authored the opinion, joined by Chief Judge Staring and Judge Kelly.

Posted by: Joshua J. Messer