Arizona Dept. of Economic Sec. v. O'Neil
| Decision Date | 11 May 1995 |
| Docket Number | CA-SA,No. 2,2 |
| Citation | 901 P.2d 1226,183 Ariz. 196 |
| Parties | , 23 Media L. Rep. 2402 ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Petitioner, v. The Honorable William J. O'NEIL, a Judge for the Superior Court of the State of Arizona, County of Pinal, Respondent, and PHOENIX NEWSPAPERS, INC., Real Party in Interest. 95-0035. |
| Court | Arizona Court of Appeals |
In this special action, the Arizona Department of Economic Security (DES) challenges the respondent judge's order requiring it to disclose to real party in interest Phoenix Newspapers, Inc. (PNI) all information relating to a Pinal County juvenile dependency proceeding, including that which may be protected by the attorney-client privilege. Because DES has no equally plain, speedy, and adequate remedy by appeal, Rules 1 and 3, Ariz. R.P. Spec. Action, 17B A.R.S., we previously accepted jurisdiction and granted relief, with an opinion to follow. This is that opinion.
PNI filed a petition in Maricopa County pursuant to A.R.S. § 8-546.07 seeking the release of "any information and records regarding" a 14-year-old girl who was the subject of a dependency proceeding. The child had been taken from the custody of her legal guardians by Child Protective Services (CPS), placed in foster care, and then placed in the custody of an older sibling. She later committed suicide. In its petition, PNI sought all information regarding all persons who had had physical or legal custody of the child, "and the substance and results of any CPS investigation into the circumstances of her death." PNI acknowledged that the information it sought was confidential under A.R.S. § 8-546.07, but nonetheless argued that release was appropriate under § 8-546.07(E), which provides for a balancing by the court of
the rights of the parties entitled to confidentiality pursuant to this section against the rights of the parties seeking release of the information. The potential benefit or harm from releasing the information sought shall be considered. The court may release otherwise confidential information only where the right of the parties seeking the information and any benefits from releasing the information sought outweighs the rights of the parties entitled to confidentiality and any harm that may result from releasing the information sought. The court may require the department to submit the requested information to the court for an in camera inspection....
DES responded that it did not object to the release if proper under § 8-546.07(E), but asked that anything protected by the attorney-client privilege be redacted. The court reviewed the file in camera, found that the records were confidential and, after conducting the required balancing, ordered DES to produce the information subject to certain limitations, none of which pertained to information protected by the attorney-client privilege.
DES moved for clarification regarding the privilege issue. After considering the parties' memoranda on the issue, the court denied DES's motion, ruling "that the balance in this case must be weighed in favor of releasing information that has been argued to be attorney/client privileged." This special action followed, raising the issue of whether the balancing prescribed by § 8-546.07(E) encompasses, abrogates, or alters that privilege. We conclude that it does not.
Section 8-546.07(A) creates a right of privacy in "[a] person who is the subject of an investigation under this article, the alleged victim and the alleged victim's siblings." This statute creates a right of privacy that would not otherwise exist for these individuals. Their privacy is protected by subsection B of the statute, which renders confidential any information about them in the possession of DES. That confidentiality is preserved by limiting access to the information to those persons or entities specifically set forth in subsections C and D or, as in this case, by requiring a court order pursuant to subsection E. The language in subsection E, however, neither expressly nor impliedly provides that the court can order, in addition to confidential information, the release of information protected by a privilege. Subsection E, by its terms, provides an exception only to the right of confidentiality created by the statute and does not address the applicability of any privilege.
In contrast, § 8-546.04 addresses the issue of privileged, as...
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