Arizona Court of Appeals Division One Holds that Sheriff Arpaio Failed to Promptly Furnish Public Records Requested by the New Times, and the New Times May Be Entitled to Recover its Fees and Costs.

Between May and September of 2004, during Sheriff Arpaio’s reelection campaign, the New Times made a series of public records requests of the Maricopa County Sheriff’s Office. On September 23, 2004, having received no documents, the New Times filed a special action asking the court to order the MCSO to produce responsive public records. After the special action was filed, the MCSO provided the previously requested records.

The principal issue before the trial court was the New Times’ request for an attorneys’ fee pursuant to A.R.S. 39-121.02(B), which provides that if “if the court finds that the custodian of such public record acted in bad faith, or in an arbitrary or capricious manner, the superior court may award” attorneys’ fees. Without holding an evidentiary hearing, the trial court denied New Times’ fee petition, finding that the MCSO had not acted in bad faith because it had produced the records requested.

The Arizona Court of Appeals reversed the trial court’s determination with respect to all but one of the nine public records requests made by the New Times. Noting that records subject to disclosure are to be produced “promptly” under A.R.S. § 39-121.01(D))(1) and failure to timely produce records is deemed a denial of access, the Court analyzed each records request separately, finding that in all but one instance, the MCSO could not sustain his burden of establishing that its response was prompt or that it had adequately searched for responsive documents. The Court of Appeals remanded the case to the trial court to determine whether the Sheriff acted in bad faith or in an arbitrary or capricious manner in denying access to the documents and whether, under the circumstances, the New Times is entitled to an award of its fees.

Presiding Judge Snow authored the opinion, with Judges Barker and Kessler concurring.