Tucson CitizenTucson Citizen

Right to know ‘substantially prevails’

A week ago, the Arizona Supreme Court chose to let stand a December Arizona Court of Appeals decision that requires Maricopa County Sheriff Joe Arpaio pay attorneys fees to the Tucson Citizen stemming from a public records lawsuit filed in 2007 by Pima County Attorney Barbara LaWall.
It was an anticlimactic end to an important public records decision that will be noted more for the ruling about court fees than about whether the disputed records were public.
Arizona has one of the best public records laws in the country because of its sweeping scope. It broadly defines public records and says those records are to be made available for public inspection at any time during business hours.
The only exceptions are if the Legislature exempts a record from release or if a public official can prove that the state or an individual would be harmed by the release and that the harm outweighs the public’s right to know.
Unfortunately, the state also has one of the worst public records laws in the country in that there is no penalty if a public record is wrongly withheld. The public records statute only allows for the filing of a lawsuit if records requesters believe they are entitled to withheld records.
If a judge rules a record should have been released, the only penalty to the government agency is paying attorneys fees.
Filing a lawsuit is costly. That’s why there are only a about a dozen public records’ denial lawsuits filed every year even though there are thousands of denials and redactions made by public officials every year.
Before 2006, a records requester had to prove a public official acted in bad faith in denying a record in order for a requester to be awarded fees.
But the Legislature changed the law that year to say records requesters need only “substantially prevail” in their requests in order to get fees.
And importantly, it deleted reference to “custodians” of records and instead said requesters were entitled to fees “in any action” in which they prevail.
That language was at the heart of the December Court of Appeals ruling and is why Arpaio has to pay the Citizen’s court fees (then about $25,000 but now the bill is up to more than $60,000).
The dispute began in July 2007 when former Citizen Associate Editor Mark Kimble requested records from LaWall about a gambling case that had been transferred to her office by Attorney General Terry Goddard.
LaWall wanted to release the records and notified Arpaio because his deputies were the investigators in the case. Arpaio objected to the release, saying it would harm the state’s interest and that somehow LaWall was his attorney and it would violate the attorney-client privilege. LaWall went to court seeking a declaratory judgment, essentially suing the Citizen, Kimble and Arpaio.
The lower court judge ruled the records should be released and granted the Citizen attorneys fees but said Arpaio should pay them because it was his objections that led to the suit.
Arpaio appealed and lost and in doing so he has helped set an important precedent. This case was the first test of the “substantially prevail” portion of the public records law.
In essence, the court has ruled that if people seeking public records have to sue to get them or get sued because of the request, and they win or get most of what they wanted, they get their fees paid.
The ruling doesn’t change the fact that records lawsuits are expensive and will likely remain infrequent. The cause of openness in Arizona will continue to die a death of a thousand little denials.
But it does serve notice to public agencies that it doesn’t matter whether their denial of a record was in good faith or not, if they’re wrong, they may have to pay.
And when it comes to the right to know, every little bit helps.

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