Lunney v. State (12/7/2017)

January 9, 2018

Arizona Court of Appeals Division One holds that a state agency must search multiple databases if necessary to adequately respond to a public records request.

The parents of a boy who died in an accident made numerous requests under Arizona’s Public Records Law to the Arizona Department of Public Safety and the Arizona Department of Transportation.  The agencies initially responded directly to the requests but later the attorney general’s office became involved and answered the parents’ requests in “Supplemental Disclosures.”  The parents brought a special action alleging violations of the public records law.  After a hearing the trial court found for the state agencies on all claims.  The parents appealed.

The Court of Appeals addressed four issues on appeal.  First, it is not improper for agencies to route public records requests and responses through the attorney general’s office.  The public records law does not specifically delineate the procedure to be followed and state agencies have a right to seek legal advice and assistance from the attorney general.

Second, a public records response may require the agency to provide information from multiple databases.  Here, the agency had refused to respond to requests to provide information about the officers on duty at the time of the accident because it would require the agency to search multiple databases.  The public records law does not require an agency to create documents that do not exist but it does require the agency to query and produce information from its databases.  Agencies are not required to analyze, tally, or compile “information about information.”  However, the mere fact that multiple databases must be queried does not excuse the agency from producing the information from each one if it is responsive to the request.

Third, the court held that private cell phone records can be public records in some circumstances.  Initially, the person requesting records must meet the relatively low burden of showing a substantial question about the record’s status.  The requestor can do so by showing that the employee used a personal cell phone for a public purpose.  The burden then shifts to the agency to establish that the record is private.  In camera review is an appropriate method for the court to use when balancing concerns over privacy, confidentially, or the best interests of the state.  Here, there was no evidence that the cell phone records were available and so the court did not review whether the records were public.

Fourth, the court found one of the responses to one records request was untimely.  The burden is on the agency to show that its production was made promptly as required by the statute.  In this case, the agency took 135 days to respond and did not provide any legally sufficient reason for the delay.  The court remanded for determination of an appropriate sanction.

Presiding Judge McMurdie authored the opinion; Judges Swann and Portley concurred.