Arizona Supreme Court ruling gives sweeping protections to public records requests

Government entities that destroy a public record that they know has been requested violate state law and can be held liable — and even forced to pay the challenger’s legal fees — the Arizona Supreme Court ruled Friday.

In a wide-ranging decision, the state’s high court also gave new rights to those whose demand for records is frustrated by administrative delays and denials — including, in some cases, getting their legal fees paid.

And the justices concluded that trial judges should give no deference to a public agency’s determination that a particular document is not subject to disclosure.

Instead, Justice Clint Bolick, writing for the unanimous court, said it is up to judges, faced with a complaint that a record has been wrongfully withheld, to make their own determinations if any of the exceptions to the state’s public records law apply. And that, he said, can be accomplished by judges conducting a private “in camera” inspection in chambers of the documents before reaching a decision.

But the high court also dealt a blow of sorts to some who pursue public records.

The justices said Arizona law allows those who prevail to get their legal fees paid only if they actually file suit — even if they actually have had to hire an attorney to convince the agency to surrender the documents. It’s only when a case goes to court that the agency can be forced to pay the challenger’s costs.

Bolick conceded that may not be fair — or even within the spirit of the public records law and its presumption in favor of disclosure.

“Public entities lack a financial incentive to fully and promptly comply with public records requests about the threat of attorney fees for incorrectly denying the request,” he wrote.

“Members of the public who cannot afford to file a lawsuit may be denied their right to inspect public records,” Bolick continued. “But these concerns are for the Legislature to address, not the court.”

As to the specifics here, Friday’s ruling is a partial victory for Matthew Abraham, who had been rejected in his bid for certain program positions at the University of Arizona. It sends the case back to a trial judge who denied his access to some documents to take another look — using the guidelines the justices outlined — to determine if they are public.

Abraham had questioned whether the university was complying with Proposition 107, a 2010 voter-approved amendment to the Arizona Constitution which prohibits the state from granting preferential treatment or discriminating against any individual or the basis of race, sex, color, ethnicity or national origin in public employment, education or contracting. That measure also covers the state university system.

That led to his filing a series of public records requests related to hiring and appointment practices as well as documents related to the search and selection process.

Friday’s ruling concludes that the decision of the university to destroy an audio recording amounted to an illegal denial of records.

The justices also opened the door for Abraham to collect his legal fees, not only for the records that were denied after he eventually filed suit but also for those that were withheld before he went to court.

But the ruling sends the entire case back to the trial court to determine — independent of any claim by the university — whether the records he sought are, in fact, public. And all that will determine if Abraham “substantially prevailed” in his litigation and is entitled to have the university pay all of his costs.

It also still leaves unresolved Abraham’s separate claims against the university about whether he was improperly denied promotions and, ultimately, the legality of his firing in April. A hearing is set for Nov. 20 in Pima County Superior Court.