Bolm v. Custodian of Records of Tucson Police Dept.

• Decision Date: 25 November 1998
• Docket Number: No. 2CA-CV,2CA-CV
• Citation: 193 Ariz. 35,283 Ariz. Adv. Rep. 13,969 P.2d 200
• Parties: , 283 Ariz. Adv. Rep. 13 John G. BOLM, Plaintiff/Appellee/Cross-Appellant, v. CUSTODIAN OF RECORDS OF the TUCSON POLICE DEPARTMENT; and the City of Tucson, Defendants/Appellants/Cross-Appellees. 97-0182.
• Court: Arizona Court of Appeals

Page 200

969 P.2d 200

193 Ariz. 35, 283 Ariz. Adv. Rep. 13

John G. BOLM, Plaintiff/Appellee/Cross-Appellant, v. CUSTODIAN OF RECORDS OF the TUCSON POLICE DEPARTMENT; and the City of Tucson, Defendants/Appellants/Cross-Appellees.

No. 2CA-CV 97-0182.

Court of Appeals of Arizona Division 2, Department A.

Nov. 25, 1998.

Richard M. Martinez, Tucson, for Plaintiff/Appellee/ Cross-Appellant.

Thomas J. Berning, City Attorney by Catherine M. Shovlin, Tucson, for Defendants/Appellants/Cross-Appellees.

OPINION

PELANDER, Presiding Judge.

¶1 This case raises issues concerning the interplay between Arizona's Public Records Law, A.R.S. §§ 39-121 to 39-125, and Arizona common law relating to discovery of police records in the course of litigation. ¹ Defendants/appellants, the Tucson Police Department (TPD) Custodian of Records and the City of Tucson (collectively the City), appeal from the trial court's judgment ordering the City to produce certain public records and awarding attorney's fees to plaintiff/appellee John Bolm. In a cross-appeal, Bolm challenges the trial court's partial denial of his public records request. We affirm that portion of the judgment that specifies which portions of the TPD records the City is required or not required to produce, but vacate the award of attorney's fees and costs to Bolm.

BACKGROUND

¶2 The underlying facts are undisputed. Bolm is an attorney who represents an individual named Donnie Lopez in three lawsuits against the City and two TPD officers. Bolm requested TPD to produce "all personnel records" of the two officers pursuant to A.R.S. §§ 39-121 and 39-121.01. The documents he requested included the officers' hiring and training records, any evaluations, commendations, reprimands, compliments, complaints, and internal affairs (IAD) investigation documents relating to those officers.

¶3 The City's counsel sent Bolm the officers' training records, a summary of TPD's records relating to one of the officers, and a letter informing Bolm that she was trying "to determine whether public records requests are affected in anyway [sic] if the subject of the request and/or the entity are involved in litigation and subject to the court sanctioned rules of discovery." Counsel's letter also stated that she had reviewed the officers' personnel records and IAD files and, although information in those files "may constitute public records if the public records law is applicable in this situation," she had "determined that there is nothing in these files that would be discoverable if requested in the pending litigation."

¶4 Bolm, through his own attorney, then filed a special action pursuant to A.R.S. § 39-121.02(A). In response, the City asserted that Bolm "should not be permitted to circumvent the disclosure rules through the illegitimate use of the public records process" and, because Bolm's client was suing the City, the trial court "should conduct an in camera inspection of the files and determine what is relevant to the litigation." After an evidentiary order to show cause hearing covering four days, the trial court concluded that the TPD personnel evaluations and IAD records were protected from production, but the officers' hiring records, official commendations, and official reprimands (hereinafter referred to as "hiring and official records") were not. The court further concluded that the City had acted arbitrarily and capriciously in withholding the latter materials and therefore awarded Bolm $12,000 in attorney's fees and $1,017 in costs pursuant to A.R.S. § 39-121.02(B). After the hearings had concluded, the trial court declined the City's request for an in camera inspection of the records Bolm had requested. This appeal and cross-appeal followed the court's entry of judgment and subsequent denial of the City's motion for reconsideration of the attorney's fee award.

DISCUSSION

I. Appeal

¶5 "Under Arizona's Public Records Law, 'public records and other matters ... shall be open to inspection by any person.' " Scottsdale Unified School Dist. v. KPNX Broadcasting Co., 191 Ariz. 297, 300 p 9, 955 P.2d 534, 537 p 9 (1998), quoting A.R.S. § 39-121. In addition to certain statutory exceptions,

[t]his public right of inspection may also be curtailed in the interest of "confidentiality, privacy, or the best interests of the state." Carlson [v. Pima County, 141 Ariz. 487, 491, 687 P.2d 1242, 1246 (1984) ]. If these interests outweigh the public's right of inspection, the [government] can properly refuse inspection. See id. The [government] has the burden of overcoming "the legal presumption favoring disclosure." Cox Arizona Publications, Inc. v. Collins, 175 Ariz. 11, 14, 852 P.2d 1194, 1198 (1993) (citing Mitchell v. Superior Court, 142 Ariz. 332, 335, 690 P.2d 51, 54 (1984)).

Scottsdale Unified School Dist., 191 Ariz. at 300 p 9, 955 P.2d at 537 p 9.

¶6 The trial court concluded, and the City does not dispute, that all of the TPD documents Bolm requested are "public records." See City of Grand Forks v. Grand Forks Herald, Inc., 307 N.W.2d 572 (N.D.1981) (municipal personnel files are public records); Toledo Police Patrolmen's Ass'n, Local 10 v. City of Toledo, 94 Ohio App.3d 734, 641 N.E.2d 799 (Ohio Ct.App.1994) (police department internal affairs documents are public records). The trial court also concluded that the City acted arbitrarily and capriciously in categorizing the hiring and official records "as being part of either the 'personnel evaluation' process or as part of 'internal affairs' records when these do not fall within the logic and reasons stated for non-disclosure of the latter." Based on that ruling, the trial court assessed attorney's fees against the City pursuant to A.R.S. § 39-121.02(B), which permits such an award if a person was "wrongfully denied access to public records" and the "custodian of the records acted in bad faith or in an arbitrary or capricious manner." Cox Arizona Publications, 175 Ariz. at 14, 852 P.2d at 1197.

¶7 We review de novo the issue of whether a denial of access to public records is wrongful. Cox Arizona Publications; KPNX-TV v. Superior Court, 183 Ariz. 589, 905 P.2d 598 (App.1995). We will uphold a trial court's finding that a records custodian acted in bad faith, arbitrarily or capriciously unless it is clearly erroneous and will reverse a fee award only for abuse of discretion. Cox Arizona Publications; KPNX-TV; Star Publishing Co. v. Pima County Attorney's Office, 181 Ariz. 432, 891 P.2d 899 (App.1994).

¶8 Citing numerous Arizona cases, ² the City asserts that "criminal defendants and civil litigants are only entitled to discover information in personnel or internal affairs records if a court, after an in camera inspection, determines that the information is relevant to the prosecution or litigation." According to the City, "[i]f interested parties are so restricted, it is axiomatic that the documents are not subject to indiscriminate public disclosure." The City describes its conduct in this matter as "deliberate" and "thoughtful," certainly not "arbitrary and capricious," because it merely "attempted to structure a test case to resolve the issue of how the discovery case law and public records law interact." Thus, the City argues, the trial court clearly erred in reaching a contrary conclusion and assessing attorney's fees and costs against it for its failure to voluntarily produce the hiring and official records. Because many of the legal issues surrounding Bolm's public records request are unsettled, we agree with that assertion but reject most of the City's substantive arguments.

¶9 Most of the cases on which the City relies only involved requests for a law enforcement agency's internal affairs records, ³ which the trial court did not require the City to produce here. In Pima County v. Harte, 131 Ariz. 68, 638 P.2d 735 (App.1981), however, this court specifically addressed police personnel records in the litigation/discovery context. In that case, which involved a civil action against two officers, we ordered the trial court to conduct an in camera inspection of the law enforcement agency's personnel and internal affairs records to determine which portions, if any, were relevant to the plaintiff's claims for relief. Relying in part on Harte, the City contends that its withholding of the hiring and official records could not have been arbitrary and capricious because "the case law denies disclosure to criminal defendants and civil litigants unless there is an in camera review and a finding of relevance."

¶10 The City's argument is too broad and partially inapplicable to the public records context. A person's right to public records under the Public Records Law is not conditioned on his or her showing, or a court finding, that the documents are relevant to anything. Rather, a public records request may be made in the absence or in advance of any litigation or anticipated claim. In such a situation, there is no issue, claim or defense against which to measure relevance. Thus, although relevance is an important factor in evaluating and determining the discoverability of police records in a litigation context, see Rule 26(b)(1), 26.1(a)(9), Ariz. R. Civ. P., 16 A.R.S.; Harte, the Public Records Law contains no relevancy requirement, and we are not inclined to judicially engraft one. See Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083, 1093 (Colo.1980) (recognizing right to inspect and copy governmental records under open records law "without limitation as to the reason or reasons for which the inspection is undertaken"); M. Farbman & Sons, Inc. v. New York City Health and Hospitals Corp., 62 N.Y.2d 75, 476 N.Y.S.2d 69, 71, 464 N.E.2d 437 (1984) (freedom of information law "does not require that the party requesting records make any showing of need, good faith or legitimate purpose").

¶11 Moreover, that litigation was pending between the City and Bolm's client when Bolm made his public records request does not...