Silverman v. AHCCCS – 6/22/2023

June 29, 2023

Arizona Court of Appeals, Division 1 holds that redaction-by-encryption does not create a new document for purposes of Arizona’s public records law.

In February 2020, a group of journalists investigating issues related to services for Arizonans with developmental disabilities made a public records request to the Arizona Health Care Cost Containment System (“AHCCCS”) for records related to the Arizona Long-Term Care System. The journalists knew that certain information would have to be redacted for privacy reasons, but their request included data across many of AHCCCS’s databases. So, they requested that where personally identifying information was used as a unique identifier across multiple sources of information, AHCCCS replace that information with a new unique identifier, such as a hash key, rather than simply redact that information. AHCCCS asserted that the creation of a new identifier would be the creation of new records, which it was not required to do under Arizona public records law and denied the request to do so.

The journalists filed a special action in superior court to compel AHCCCS to comply with their request. AHCCCS moved to dismiss, again arguing that replacing personally identifying information with a new identifier constituted creation of a new record. The superior court agreed with AHCCCS and dismissed the journalists’ special action. The journalists appealed.

On appeal, the Arizona Court of Appeals, Division 1, reversed the superior court and remanded for further proceedings. The Court, in staying true to the longstanding rule that the public is entitled to the “real record,” held that the replacement of confidential information with a new unique identifier—redaction-by-encryption—did not constitute the creation of a new record. The Court reached this conclusion by focusing on what exactly was being redacted. Here, the journalists were asking that, even if the information had to be redacted, AHCCCS should nonetheless not be allowed to redact the function of that information, which is using it to link the information across several databases. The former would constitute the creation of a new record; the latter does not. Because the journalists’ request was aimed only at preserving function, it did not constitute the creation of a new record.

In reaching this conclusion, the Court noted that encryption-by-redaction was different from more traditional redaction approaches. But the Court also noted that as public records are increasingly stored in new formats, public entities will be increasingly called on to disclose those records in new ways. Here, the journalists’ request represented a more tailored form of redaction best suited to the disclosure of the “real record.”

Because the journalists’ special action was dismissed at the pleadings stage, the Court remanded for further proceedings so that the superior court could determine whether creation of a new unique identifier would impose an undue burden on AHCCCS.

Judge Cattani authored the opinion for the Court, joined by Judges Gass and Bailey.

Posted by: Joshua J. Messer