Phoenix New Times, L.L.C. v. Arpaio

Citations: 177 P.3d 275; 217 Ariz. 533; 36 Media L. Rep. (BNA) 2173; 523 Ariz. Adv. Rep. 10; 2008 Ariz. App. LEXIS 19Docket: 1 CA-CV 05-0768

Court: Court of Appeals of Arizona; February 5, 2008; Arizona; State Appellate Court

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Phoenix New Times, L.L.C. and John Dougherty (collectively "the New Times") appealed the superior court's denial of attorney's fees related to their public records requests directed at Maricopa County Sheriff Joseph M. Arpaio and Maricopa County. The appeal arose after the New Times sought access to documents under Arizona's public records law, with requests made from May to September 2004. Following a lack of response, the New Times filed a special action in court on September 23, 2004, requesting access to the records and the recovery of legal fees. 

Subsequently, between October 4 and October 14, 2004, the Sheriff's Office provided the requested documents. Arpaio claimed that all relevant documents had been supplied by the time he responded to the complaint on October 15, 2004. The remaining issue for the court was whether the New Times should be awarded attorneys' fees under A.R.S. 39-121.02(B), which permits such awards if a denial of access was wrongful and conducted in bad faith or arbitrarily. The superior court did not hold an evidentiary hearing but allowed the parties to submit briefs and deposition transcripts for consideration. The Court of Appeals reversed the superior court's finding that the documents were "promptly furnished" and remanded the case for the superior court to reconsider the fee award.

The court ruled that the Petitioners' claims against Sheriff Joseph Arpaio for failing to timely disclose public records were unfounded, as all requested records were produced for inspection and copying. The Sheriff even assisted in preparing non-existent records and provided personnel for interviews to clarify missing data. The court found no bad faith on the Sheriff's part, determining that the records were disclosed in a reasonable time and manner. Consequently, the Petitioners' request for relief was denied, and while both parties' requests for attorneys' fees were denied, Arpaio was awarded costs as the prevailing party.

The court entered final judgment on September 26, 2005, leading to an appeal by the New Times, which challenged the trial judge's denial of attorneys' fees under A.R.S. 39-121.02(B). For the New Times to qualify for attorneys' fees, it needed to prove that the Maricopa County Sheriff's Office (MCSO) wrongfully denied access to records and acted in bad faith or arbitrarily. The court evaluated whether MCSO wrongfully denied access to records, stating that a wrongful denial occurs when a requester is entitled to the records. The trial court concluded that MCSO did not wrongfully deny access, as the records were produced after the New Times filed a special action. However, Arizona law mandates prompt production of public records, and a failure to do so constitutes a denial. The court's inquiry focused on whether MCSO failed to promptly provide the records requested by the New Times. If such failure occurred, the superior court could award attorneys' fees at its discretion.

Arizona law mandates that public bodies promptly furnish requested documents but does not define a specific timeframe for compliance. "Prompt" has been interpreted to mean quick action or immediate production of documents, as established in West Valley View, Inc. v. Maricopa County Sheriff's Office. In that case, the court ruled that documents in a defined category must be produced "at once." However, the promptness of a government agency's response can vary based on the specific facts and circumstances of each request. 

The burden is on the Maricopa County Sheriff's Office (MCSO) to prove that its responses to the New Times' requests were prompt, consistent with Arizona law. This burden includes demonstrating that the agency conducted a thorough search for requested records. The agency must make a good faith effort and can use affidavits to detail its search efforts. Additionally, the assessment of promptness focuses on the timing of the original request rather than any subsequent legal actions taken to compel access to the documents.

The New Times contends that MCSO's overall failure to respond indicates a pattern of obstruction, arguing that the superior court erred in its ruling. However, to evaluate the promptness of MCSO's responses to the nine individual records requests, the specific circumstances surrounding each request must be examined. An example provided is the New Times' request on May 24, 2004, for all documents related to allegations of sexual misconduct against Dan Saban, a political candidate, highlighting the need for a detailed review of each request's context.

MCSO's Director of Media Relations, Lisa MacPherson, informed Dougherty on May 27, 2004, that MCSO would not respond to his request regarding the investigation of Dan Saban because the case had been "conflicted out" to the Pima County Sheriff's Office. She did not clarify if MCSO retained any documents related to the investigation. After Dougherty filed a lawsuit, MCSO provided records on October 14, 2004, 143 days after the request was made. In her deposition, MacPherson stated that she inquired about the investigation and was told by another MCSO officer that all materials had been sent to Pima County, concluding that MCSO had no documents. However, the law requires MCSO to provide access to public records in its custody, not just to determine if an investigation was ongoing. MCSO's transfer of the investigation did not relieve it of the obligation to furnish any retained documents. Ultimately, MCSO did not make adequate efforts to verify if it had any relevant documents. It failed to inform the New Times that it had transferred all records to Pima County, as required, and its lack of a thorough search undermined its claim of promptness in responding to the request. Notably, MCSO had previously provided the records to a local television station in April 2004, indicating that it likely had the documents at the time of Dougherty's request.

MCSO failed to provide a legally sufficient rationale for a 143-day delay in disclosing records to the New Times, which constitutes a wrongful denial of access under A.R.S. 39-121.01(E). The court's finding was deemed erroneous as MCSO did not meet its burden of proof regarding the promptness of its response. In a separate instance, MCSO received a request for Sgt. Leo Driving Hawk's personnel file on May 26, 2004, and acknowledged possession of the documents. However, the response was delayed by 141 days, attributed to an employee's personal feelings towards the New Times, which does not justify the delay. The employee's inattentiveness does not fulfill the legal requirement for promptness, and the core principle of public records law aims to ensure public access to government documents. MCSO's lack of a satisfactory explanation for the extensive delay further supports the conclusion that it wrongfully denied the request.

On June 18, 2004, the New Times requested all records related to a proposed fish pond at the tent city complex, including proposals, contracts, and permits associated with its construction. The Maricopa County Sheriff’s Office (MCSO) produced the requested documents 108 days later, on October 4, 2004. During a deposition, MacPherson from MCSO could not confirm when she first initiated the assembly of the documents or whether the lawsuit influenced her actions. She recalled making only three phone calls to two individuals in the 108-day period to fulfill the request. Although delays may be justified for voluminous requests, MCSO failed to provide timely updates or notifications regarding the status of the request, as required by Arizona law. Consequently, the trial court incorrectly concluded that MCSO did not wrongfully deny access to the documents requested by the New Times.

On June 18 and June 28, 2004, the New Times submitted requests to the MCSO for records related to vending machine services at county jails and the MCSO canteen, covering contracts, proposals, internal correspondence, and financial records from various timeframes. Despite these requests, MCSO did not take action until after a lawsuit was filed, only instructing an employee to retrieve records from Materials Management. Testimony indicated a lack of investigation into whether the requested records were in MCSO custody. Following the lawsuit, MCSO produced relevant records, but this was over one hundred days after the initial requests, which the court determined constituted a wrongful denial of access. 

Additionally, on July 9, 2004, the New Times requested incident reports regarding an inmate's alleged death at the Durango facility. MCSO's MacPherson initially reported no death occurred, but later learned an inmate had died that day without correcting her earlier statement. There was no evidence that the request was ever withdrawn by the New Times.

MacPherson provided several reasons for not notifying the New Times of a death related to a records request. She believed informing Dougherty that there was "no death" sufficed, despite later learning of the actual death. MacPherson stated that the Maricopa County Sheriff's Office (MCSO) did not create records regarding the death until three months post-incident, but she was uncertain about the availability of records during that time as she did not investigate. In her May 17, 2005 affidavit, she claimed she did not inform Dougherty because she assumed he would not be interested, having been told it was a natural death.

These justifications failed to meet MCSO's obligation to provide records promptly, as established by legal precedent. An agency cannot evade responsibility for disclosing records by claiming it no longer has that obligation once it realizes its error. Additionally, an agency may not assume a requestor's lack of interest without communication, as the requestor's intent is irrelevant to public records disclosure. MCSO also did not demonstrate that no records were created regarding the inmate's death until shortly before they were provided on October 14. Legal standards dictate that agencies cannot delay access to available records while awaiting a final report.

In another instance, the New Times requested payroll records for "Deputy Don Overton" on July 9, 2004. Although MCSO had an employee by that name, he was not a deputy. MacPherson informed Dougherty via voicemail the same day that MCSO did not have a deputy by that name but did not verify if there was a non-deputy employee by the same name. The trial court ruled that the New Times was not wrongfully denied access to these records, as MCSO's response was timely and accurate, addressing the specific request for a deputy. The court found no reason for MCSO to assume the request pertained to a non-deputy.

On July 29, 2004, Dougherty requested records from the sheriff's office under Arizona public records law, including reports related to the arrests of Gabriel Golden and Eric Kush, booking information for the same, reports on tactical actions at 16843 S. Cyan Court involving an armored vehicle and tear gas, and documentation of a pet dog's death due to a fire. Dougherty later requested a citizen-made video of the incident. Lt. Chagolla acknowledged the request but delayed a response until the investigation concluded, despite Dougherty's assertion that arrest and booking records should have been readily available. MCSO did not release any records until after a lawsuit was filed, failing to provide justification for the 77-day delay in fulfilling the request. As per legal precedent, records should not be withheld until a final report is completed, and ongoing investigations do not exempt records from public disclosure. The court concluded that the New Times was wrongfully denied access to the requested public records.

On August 26, 2004, Dougherty sent another public records request regarding a SWAT arrest at the Westerner Motel. Lt. Chagolla admitted he overlooked the request until a month later, after the lawsuit was filed. MCSO did not challenge the appropriateness of Dougherty's request or the method of communication. The court found that the 49-day delay in providing the requested report was not prompt due to the agency's negligence. Therefore, the New Times was wrongfully denied access to these documents as well, and the trial court erred in its handling of both requests.

On September 20, 2004, Dougherty requested all booking reports and departmental records for inmates serving sentences at the Mesa jail from January 1, 2000, to September 20, 2004. Lt. Chagolla informed Dougherty that the booking process did not allow for the separation of records by the categories requested and that no process existed for capturing inmate assignments. While Chagolla sought booking records, he did not inquire about other departmental records as Dougherty had requested. During his deposition, Lt. Shepherd, identified as the most knowledgeable person regarding East Mesa jail records, acknowledged that all inmate records were computerized, but he lacked direct access and knowledge to retrieve the information. He could not identify who within the Sheriff's Office could access the records or determine the current inmate list without prior knowledge of names. The records management is overseen by Renee Brannon, while the IT group, managed by Shelley Bunn, houses the records. The burden to prove the nonexistence of the requested records falls on the government, and MCSO has not demonstrated that such records do not exist, despite claiming that Lt. Shepherd was the knowledgeable party, which he admitted was not accurate.

MCSO failed to demonstrate that the requested records did not exist, nor did it provide the records in question. Consequently, the trial court incorrectly ruled that the New Times was not wrongfully denied access to these records, except for the Overton request. The court found that the New Times met the criteria for attorneys' fees. The matter of whether MCSO's denials were made in bad faith, or were arbitrary or capricious, remains unresolved. It is the superior court's responsibility to assess MCSO's conduct in denying the documents, with its determinations being upheld unless clearly erroneous. Although the superior court noted that MCSO did not act in bad faith, it did not evaluate the arbitrary or capricious nature of the denials. The appellate court clarified the standard for wrongful denial of documents, indicating that MCSO's delay constituted such a denial. The appellate court vacated the superior court's finding regarding bad faith to allow for a reassessment under the correct legal standard. On remand, the superior court must determine if MCSO's actions were in bad faith or arbitrary/capricious, and whether the New Times is entitled to attorneys' fees under the statute. The appellate court vacated the denial of attorneys' fees to the New Times and the award of costs to MCSO, instructing the superior court to reconsider the issue of attorneys' fees, including those incurred during the appeal, if the New Times prevails.

New Times is awarded its appeal costs contingent on compliance with ARCAP 21. Judges Daniel A. Barker and Don Kessler concur. The statute permits the awarding of attorneys' fees to individuals who substantially prevail in seeking public records without requiring proof of bad faith or arbitrary conduct by the agency (A.R.S. 39-121.02(B), Supp. 2006). Various states have different timelines for making public records available, typically ranging from three to ten days, with Arizona's statutes allowing for extensions only for reasonable cause. It is noted that Arizona's public records laws can be interpreted with reference to the Freedom of Information Act (FOIA) and the California Public Records Act. A custodian's reasonable efforts and good faith are essential to determine if a denial of access to records is wrongful. A specific request by New Times was amended to include all relevant permits, and an instance is cited where a general ledger was not available for copying until a significant time after the request was made.