Public Records I. As a public institution, the University is subject to public oversight. One important means the Legislature has created to assure such oversight is the ability of the public to have access to University records and documents. II. The Arizona Public Records Statute - Arizona Revised Statutes (A.R.S.) 39-121: "Public records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours." [http://www.azleg.state.az.us/formatdocument.asp?indoc=/ars/39/00121.htm&title=39 &DocType=ARS] A. What did the Legislature mean by "public records"? A.R.S. 39-121.01(B): "All officers and public bodies shall maintain all records, including records as defined in 41-1350, reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by funds from the state or any political subdivision thereof." [http://www.azleg.state.az.us/formatdocument.asp?indoc=/ars/39/00121-01.htm&title=39&doctype=ars] A.R.S. 41-1350, Definition of records: "[A]ll books, papers, maps, photographs or other documentary materials, regardless of physical form or characteristics... made or received by any governmental agency in pursuance of law or in connection with the transaction of public business and preserved... as evidence of the organization, functions, policies, decisions, procedures, operations or other activities of the government, or because of the informational or historical value of the data contained therein." B. Parsing the Statute: 1. "Public records and other matters... " a. The courts do not trouble themselves over what items are "public records" and what are "other matters." "The proper way to view all requests for information is not to determine whether or not a record is technically a record or other matter, but instead to determine if release of the information would - 1 -
have an important and harmful effect upon the official duties of the official or agency." Church of Scientology v. City of Phoenix (police investigative reports) b. The test is whether the "matter" or "thing" relates to the officer's public duties - What the public is paying you to do. "A public record must have some relation to the official duties of the public officer that holds the record." Salt River Pima-Maricopa Indian Community v. Rogers (internal records of tribal financial matters) "[T]he purpose of the law is to open government activity to public scrutiny, not to disclose information about private persons." Griffis v. Pinal County (personal e-mail on office accounts) c. And it is not limited to physical documents - e-mail and electronic data compilations, including embedded metada, are subject to the law. Star Publishing Co. v. Pima County Attorney's Office (backup tapes of all documents, including e-mail); Lake v. City of Phoenix (embedded metada) 2. "... in the custody of any officer... " It used to say "in the office of any officer" - since amendment in 2000 you can't hide documents at home. 3. "... shall be open to inspection by any person... " They don't have to get permission. They don't have to give a reason. "There is no statutory right created to allow the county attorney to limit the scope of public interest in public business." Star Publishing Co. v. Pima County Attorney's Office [But special rules apply to "commercial" requests - see Section IV below] 4. "... at all times during office hours." - 2 -
This doesn't mean you have to drop everything or disrupt office operation, but the University must "promptly respond" or access to the record is deemed to have been denied. A.R.S. 39-121.03. Therefore, when response is likely to take significant time, it is important and prudent to acknowledge the request in writing and indicate estimated production date. The agency has the burden of showing that it responded promptly. Phoenix New Times, L.L.C. v. Arpaio III. Are there any exceptions? A. Not on the face of the statute: "Public records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours." B. But... 1. Contrary to common (client) belief, marking a document "Draft" or "Confidential" does not make it exempt from inspection. There must be a separate legal basis for denying public access. 2. There is no exception for "SELF-CRITICAL ANALYSIS." 1. The law applies only to records - it doesn t require you to grant interviews or explain matters (though there are certainly times when it is appropriate to do so). 2. The law doesn t require the creation of new records or compilations. Arizona Attorney General Opinion No. I85-023. 3. An agency must honor a standing request (i.e., updates once the institution has fully responded to the initial request) for a narrowly defined, clearly identifiable category of to-be-created documents that the public agency concedes are public records. West Valley View, Inc. v. Maricopa County Sheriff s Office (attempted exclusion of newspaper from press release distribution list) 4. And specific exemptions are created by other statutes: a. The Big One: FERPA (Family Educational Rights and Privacy Act) 20 U.S. Code 1232g "personally identifiable information" regarding past and present students may not be disclosed without the student's consent unless it is "directory information." - 3 -
[See UA FERPA Policy, http://w3.arizona.edu/~policy/ferpa.shtml] b. Other state law exceptions: A.R.S. 39-123 - Home address or phone number of police officers and prosecutors A.R.S. 39-125 - Location of archaeological discoveries A.R.S. 15-1640 - University research data: * pending grant applications, * confidential research sponsor disclosures, * unpublished research results, * donor-restricted archival documents, * confidential donor records. A.R.S. 15-141 - Educational records (same as FERPA) A.R.S. 32-749 - Accountant/client privilege A.R.S. 36-509 - Health care records (physician/patient privilege) A.R.S. 41-1279.05(A) - Working papers of the Auditor General c. Privileged or Confidential Communications (not specifically exempt from public records law, but probably would be upheld under common-law "confidentiality" exception): A.R.S. 38-431.03 - Executive sessions of public bodies (Board of Regents discussions of personnel actions, consultation with attorneys, real property negotiations) A.R.S. 12-2234 - Attorney/client privilege A.R.S. 12-2238 - Mediation ["a process in which parties who are involved in a dispute enter into one or more private settlement discussions outside of a formal court proceeding with a neutral third party to try to resolve the dispute"] (UA ombudsperson program) d. ABOR Policy 6-912 - Personnel Records, other than name, title, dates of employment and salary [This exception has not been tested in court. A 2008 statutory amendment requires public agencies to disclose records of disciplinary actions against employees, including the employee's - 4 -
C. "Common-Law" Exemptions: response. Other personnel and employee records are evaluated individually, balancing invasion of the employee's personal privacy vs. the public's right to know. See discussion below of the common-law privacy exemption.] Made by judges, construed by judges. "The common law limitations to open disclosure... are based on the conflict between the public's right to openness is government and important public policy considerations relating to protection of either the confidentiality of information, the privacy of persons, or a concern about disclosure detrimental to the best interests of the state." Carlson v. Pima County 1. Not as easy as it sounds - "The burden of showing that specific, material harm will result from disclosure, thus justifying an exception to the usual rule of full disclosure, is upon the party that seeks nondisclosure rather than the party that seeks access." Mitchell v. Superior Court (presentencing reports) 2. And if you're wrong, you pay! "If... a person was wrongfully denied access to... a public record, and if... the custodian of such record acted in bad faith, or in an arbitrary or capricious matter, the superior court may award to the petitioner costs, including reasonable attorney fees, as determined by the court." A.R.S. 39-121.02(B) Under UA policy, liability falls on the departments, not the attorneys or the central administration. (3D Memo, 12/7/09) 3. "Privacy" exception - "[T]he term 'other matters'... has been construed as referring to 'other public matters.'... The definition, therefore, does not include records that reveal only the private affairs of citizens." Salt River Pima-Maricopa Indian Community v. Rogers "[T]he purpose of the law is to open government activity to public scrutiny, not to disclose information about private persons." Griffis v. Pinal County - 5 -
The privacy exception also affects the manner of disclosure (911 transcript vs. tape). A.H. Belo Corp. v. Mesa Police Department 4. "Confidentiality" exception - it is not entirely clear what it covers - BUT the courts have made clear that you can't make something "confidential" by promising you won't disclose it - Moorehead v. Arnold (annexation petitions) Sensitive business information, such as customer lists that have commercial value, are confidential under the Arizona Uniform Trade Secrets Act, A.R.S. 44-401 et seq. Chapter 6 of the Arizona Agency Handbook (compiled and published by the Arizona Attorney General's Office) contains a comprehensive list of matters made confidential by statute. [http://www.azag.gov/agency_handbook/agency_handbook.html] 5. "Best interest of the state" exception - "When the release of information would have an important and harmful effect on the duties of the officials or agency in question, there is discretion not to release the requested documents." Arizona Board of Regents v. Phoenix Newspapers, Inc. (ASU Presidential search candidates list) The courts scrutinize the "best interest" rationale very skeptically - "The State fails to recognize the significant interests arrayed against its asserted interests of expense and convenience. The public s right to know any public document is weighty in itself. In this case, however, the public documents are of broad and intense interest." Phoenix Newspapers, Inc. v. Keegan (AIMS test questions) D. Unreasonably burdensome requests: There may be discretion to deny a request that extends to thousands of random and uncategorized documents, review of which would require an unreasonable expenditure of resources and staff time and would interfere with the mandated functions of the office. Arpaio v. Davis (applying court administrative rules that are similar but not identical to the public record statute) - 6 -
IV. "Commercial purposes" provisions - A. Does not restrict right to inspect. But does require the requestor to pay the fair value of the data. B. Definition of "commercial purpose" - A.R.S. 39-121.03(D): "use of a public record for the purpose of sale or resale or for the purpose of producing a document containing all or part of the copy, printout or photograph for sale or the obtaining of names and addresses from public records for the purpose of solicitation or the sale of names and addresses to another for the purpose of solicitation or for any purpose in which the purchaser may reasonably anticipate the receipt of monetary gain from the direct or indirect use of the public record." C. Commercial purpose does not include - * gathering evidence for a court case * news gathering. Star Publishing Co. v. Parks (autopsy reports) Seeking data for use in the requester's business operations (as opposed to the resale of the information or using it for customer solicitation) is not a "commercial purpose." Primary Consultants, L.L.C. v. Maricopa County Recorder V. Many documents contain portions that are exempt but large portions that are not exempt. The courts have a solution: When in doubt... Edit! "Good reason to deny access to part of a record is not necessarily good reason to deny access to all of it. Assuming that the record can be redacted, the custodian should consider disclosing what it can and then submitting the entire record to the court for in camera ["by the judge"] review, with specification of what has been disclosed and why public access should be denied to the rest." KPNX-TV v. Superior Court (police investigative reports) VI. To help avoid violations of the record law, and to promote consistency in our handling of public records request, the University has established a public records compliance program. - 7 -
The Office of Institutional Research and Evaluation (OIRE) administers this program and will discuss the process for receiving and responding to public record requests. Unless your department has a special standing arrangement (such as UAPD), or the request is routine (e.g., published documents), all non-media requests for inspection should be referred to OIRE. Contact Aeyn Edwards-Wheat at 626-4078. Requests from news media should be referred to the UA Office of Communications. Contact Johnny Cruz at 621-1879. VII. Other useful resources: ASU Counsel Web Page - http://www.asu.edu/counsel/brief/pubrecs.html Arizona Agency Handbook (Arizona Attorney General's Office) Chapter 6 - http://www.ag.state.az.us/agency_handbook/chapter%206.pdf (Revised January 2010) - 8 -