Curtis Goodwin Sullivan Udall & Schwab

PUBLIC RECORDS – FAILURE TO TIMELY RESPOND TO THE PUBLIC RECORDS REQUESTS IS A VIOLATION OF THE PUBLIC RECORDS LAW

In Phoenix New Times, Inc. v. Joseph Arpaio and Maricopa County, 1 CA-CV 05-0768, the Court of Appeals ruled that, with one exception, the superior court correctly ruled that the Sheriff’s Office violated its statutory duty to "promptly furnish" public records. Specifically, between May and September of 2004, a New Times reporter, John Dougherty, submitted a series of public records requests to the Sheriff’s Office pursuant to the Public Records Law. The Court noted that the requests were submitted during the Sheriff’s re-election bid.

On September 23, 2004, the New Times filed a special action in which it asked the superior court to order the Sheriff’s Office to produce all responsive records. Between October 4 and October 14, 2004, the Sheriff’s Office provided responsive documents, and then on October 15, 2004, filed an Answer in the lawsuit and alleged that all documents that existed had been produced. The only issue left in the lawsuit, therefore, was whether the New Times was entitled to an attorneys’ fees award, which at that time was discretionary.1

The superior court refused to award attorneys’ fees, finding that all responsive documents were produced "within a reasonable time and in a reasonable manner." The New Times appealed that ruling arguing that producing the records months later and only after it filed suit was neither reasonable nor timely. As explained below, the Court of Appeals agreed with the New Times.

The Court of Appeals set forth the following principles:

When assessing "promptness" of production, "we look to the time that the original request was made, and not to the time that the special action seeking access to the records was filed."
"When public records are requested from an agency, the agency has the burden of establishing that it adequately searched for them."
"[A]n agency may not wait to release requested records dealing with an incident until it has completed a final report or other similar document regarding th[e] incident" if documents that are used in the course of the investigation are available.

The Court of Appeals then reviewed each of the nine requests filed by the New Times and determined that the Sheriff’s Office violated the Public Records Law with respect to each except one request. That request sought payroll records of "Deputy Don Overton," the same day the Sheriff’s Office notified Mr. Dougherty that there was no deputy by the name "Don Overton," though she failed to investigate whether there was a non-deputy by that name. The Court of Appeals ruled that, in that single incident, the Sheriff’s Office promptly responded and the response was correct and, therefore, there was no violation of the Public Records Law.

As to the other requests, the Court of Appeals ruled that the Sheriff’s Office violated the Public Records Law as follows:

             (1)        Producing records 143 days (100 working days) after a request was made for records relating to Dan Saban was not prompt. Further, when the Sheriff’s Office claimed that it did not have responsive documents, the response was false because it failed to inform the New Times that it had the records but had transferred them to Pima County and failed to conduct a search regarding whether copies of those documents existed at the Office.

             (2)        On May 26, 2004, the records sought were the personnel file of Sgt. Driving Hawk. During a deposition, the Office admitted that it had the documents and the New Times was entitled to them. However, when the request came in the custodian did not read carefully and believed it related to a federal court matter involving Sgt. Driving Hawk’s father. Further, the custodian admitted that "she was angry with the New Times and did not want to communicate with Dougherty" and therefore failed to clarify the request with him Additionally, by the time the records were produced (after the lawsuit was filed), 141 days, or 98 working days, had passed.

             (3)        On June 18, 2004, the records sought were those relating to a proposal to build a fishpond in or near tent city. The Office produced the records (after the lawsuit was filed) 108 days later, or 75 working days. Further, the custodian testified that assembly of the 11 pages ultimately produced "took some time" and she had to make three phone calls. The Court of Appeals ruled that while a request for voluminous documents may justify some delay, 11 documents and three phone calls over a three and a half month period did not justify the delay.

             (4)        On June 18, 2004 and June 28, 2004, the New Times sought records relating to the Office’s contracts with vending and canteen providers. The Sheriff’s Office could provide no evidence that there was any attempt to locate such documents before the lawsuit was filed, except that the Office told Mr. Dougherty to get the records from the contracting party. The documents were produced after the lawsuit was filed, 100 days after the second request was made, which the Court found clearly violated the duty to respond "promptly."

             (5)        On July 9, 2004, the New Times requested all incident reports relating to an alleged death that occurred on July 9 at the Durango facility. The custodian testified that she asked the Chief of Custody whether a death occurred that day but was told there was none. The custodian relayed that information to Mr. Dougherty by voicemail the same date. Mr. Dougherty never withdrew his request. Days later the custodian learned that, in fact, a death had occurred on July 9 but she did not bother to correct the misinformation given to Mr. Dougherty on July 9. But the Office did produce records relating to that death after the lawsuit was filed, and the Court ruled that the custodian clearly lacked good faith in responding to this request, and violated the law when she did not supplement her response and provide the records she subsequently located (before the lawsuit was filed).

             (6)        On July 29, 2004, the New Times requested documents relating to the arrests and booking of individuals that occurred during an incident at 16843 S. Cyan Court. The Office responded on July 30, 2004, stating that it would be "in touch" with Mr. Dougherty regarding his request when the investigation was completed. The Office did not respond to Mr. Dougherty’s request that he should at least be entitled to the booking information. The Court ruled that the Office was not entitled to withhold documents used during the investigation until the Office completed the investigation; they should have been provided at the time of the request. The Office provided no basis for failing to produce the records until after the lawsuit was filed, and therefore the Office wrongfully withheld the documents from Mr. Dougherty.

             (7)        On August 26, 2004, Mr. Dougherty sent the Lt. Chagolla of the Office an e-mail in which he requested documents relating to a SWAT arrest on August 18 at the Westerner Motel in Wickenburg, pursuant to the Public Records Law. Indeed, the "RE:" line on the e-mail stated "public records request." The documents were never produced. Lt. Chagolla explained that the e-mail had been in his inbox since August 26, 2004 but he did not "notice it" until after the lawsuit was filed. Again, the Court of Appeals stated that "inattention" could not excuse the obligation to search for, and produce, public records. The records were finally produced 49 days later (34 working days), which was not "prompt."

             (8)        On September 20, 2004, Mr. Dougherty requested booking reports and departmental records relating to "any inmate serving jail sentences at [the Mesa jail] from January 1, 2000 through September 20, 2004." The following day, Lt. Chagolla e-mailed Mr. Dougherty and stated that there is no process to capture the booking reports requested. Lt. Chagolla did not attempt to find responsive departmental records, however. Further, during the course of the lawsuit the Sheriff’s Office kept changing its story about who would have known the departmental records existed. Its failure to adequately ascertain whether responsive documents existed, the Court held, constituted another violation of the Public Records Law.

For the reasons listed above, the Court of Appeals remanded the case to the superior court so that it could conduct an evidentiary hearing regarding whether an attorneys’ fee award was warranted and, if so, in what amount.

This case is important because it establishes that even a 34 working day delay in producing public records may violate the duty to "promptly" produce documents responsive to a public records request. Further, failure to promptly contact the requester in the event there are issues in gathering the documents may be deemed a wrongful withholding, even if responsive documents are later produced.

1 The legislature amended the Public Records Law in 2006 and the statute now provides that attorneys’ fees shall be awarded if the person seeking public records substantially prevails. Prior to that change, it was necessary to demonstrate that the entity withholding the documents did so in bad faith or arbitrarily or capriciously before being entitled to attorneys’ fees.

THE FOREGOING IS MERELY A PARTIAL SUMMARY OF THE CASE
AND IS NOT INTENDED TO BE RELIED UPON AS A LEGAL OPINION.