Energy & Env't Legal Inst. v. Ariz. Bd. of Regents, an Educ., Non-Profit Corp.

• Decision Date: 03 December 2015
• Docket Number: No. 2 CA-CV 2015-0086,2 CA-CV 2015-0086
• Parties: ENERGY & ENVIRONMENT LEGAL INSTITUTE, Plaintiff/Appellant, v. ARIZONA BOARD OF REGENTS, AN EDUCATIONAL, NON-PROFIT CORPORATION, AND TERI MOORE, IN HER OFFICIAL CAPACITY AS CUSTODIAN OF PUBLIC RECORDS FOR THE UNIVERSITY OF ARIZONA, Defendants/Appellees.
• Court: Arizona Court of Appeals

ENERGY & ENVIRONMENT LEGAL INSTITUTE, Plaintiff/Appellant, v. ARIZONA BOARD OF REGENTS, AN EDUCATIONAL, NON-PROFIT CORPORATION,AND TERI MOORE, IN HER OFFICIAL CAPACITY AS CUSTODIAN OF PUBLIC RECORDS

FOR THE UNIVERSITY OF ARIZONA, Defendants/Appellees.

No. 2 CA-CV 2015-0086

ARIZONA COURT OF APPEALS DIVISION TWO

December 3, 2015

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).

Appeal from the Superior Court in Pima County

No. C20134963

The Honorable James E. Marner, Judge

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

The Free Market Environmental Law Clinic, Washington, D.C.

By David W. Schnare

Pro hac vice and

Scharf-Norton Center for Constitutional Litigation at the

Goldwater Institute

By Jonathan Riches

Co-Counsel for Plaintiff/Appellant

Waterfall Economidis Caldwell Hanshaw & Villamana, P.C.

By D. Michael Mandig and Corey B. Larson

Counsel for Defendants/Appellants

Mayer Brown LLP, New York, NY

By Andrew L. Frey and Alex O. Kardon

Pro hac vice

and

Osborn Maledon, P.A., Phoenix

By Shane M. Ham

Co-Counsel for Amicus Curiae Climate Science Legal Defense Fund

Awerkamp & Bonilla, PLC, Tucson

By Don Awerkamp

and

American Association of University Professors

By Risa L. Lieberwitz, Ithaca, NY

By Aaron Nisenson, Washington, D.C.

Co-Counsel for Amicus Curiae American Association of University

Professors

MEMORANDUM DECISION

Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Kelly¹ concurred.

HOWARD, Judge:

¶1 In this appeal from a superior court special action, Energy & Environmental Legal Institute (E&E) appeals the court's judgment denying the disclosure of certain e-mails of two University of Arizona (UA) professors, sought pursuant to A.R.S. § 39-121. E&E argues the court incorrectly considered whether the Arizona Board of Regents (Board) abused its discretion or acted arbitrarily or capriciously in withholding the e-mails, and instead should have conducted a de novo review to determine whether E&E is entitled to access the e-mails. Because the court applied the incorrect standard in part, we vacate in part and remand for further proceedings.

Factual and Procedural Background

¶2 The following facts are undisputed. E&E² filed a public records request with the Board³ seeking over a decade's worth of e-mails of two UA professors whose work focuses on climate change. In response, the Board provided E&E with over 1,600 pages of records and a log describing approximately 1,700 records it was withholding. The Board stated it was refusing to provide E&E access to the withheld e-mails "to protect either the confidentiality ofinformation, privacy of persons, or a concern about disclosure detrimental to the best interests of the state."

¶3 E&E then filed a statutory special action in Superior Court, pursuant to A.R.S. § 39-121.02, requesting that the trial court compel the Board to release the withheld e-mails. The Board answered, contending that, "due to considerations of privacy, confidentiality, academic freedom, and the competition for and retention of faculty members, and other factors," disclosure of the e-mails "would not be in the best interests of the state."

¶4 In addition to disagreeing on whether the e-mails should be released, the parties also disagreed on what standard of review the trial court should utilize. The Board contended the court should determine whether the Board had abused its discretion, or acted arbitrarily or capriciously in refusing E&E access to the e-mails. E&E conversely argued the court needed to determine, de novo, whether the e-mails should be made available.

¶5 After a hearing on the issue, the trial court stated that, pursuant to Rule 3, Ariz. R. P. Spec. Actions, "the question before the Court is whether [the Board], when exercising its discretion to withhold certain e-mail communications after receiving [E&E's] public records request, abused its discretion or acted arbitrarily and capriciously." It later denied E&E's request to reconsider the appropriate standard.

¶6 The Board disclosed, under seal, to the trial court for an in camera review, approximately ninety of the withheld e-mails, which the parties agreed were representative of all the withheld e-mails. The court determined several categories of e-mails were properly withheld because they contained, for example, confidential information or attorney work product. As to a portion of the e-mails it characterized as "prepublication critical analysis, unpublished data, analysis, research, results, drafts, and commentary," the court concluded the Board had not abused its discretion or acted arbitrarily or capriciously. It denied E&E's request for access to those records and entered a final judgment. We have jurisdiction over E&E's appeal pursuant A.R.S. §§ 12-2101(A)(1) and 12-120.21. See Ariz. R. P. Spec. Actions 8(a).

Discussion

¶7 E&E argues the trial court used an incorrect standard to determine whether the Board was required to disclose the requested records, contending the court should have conducted a de novo review. Relating its argument to Rule 3(a), Ariz. R. P. Spec. Actions, E&E contends the court must determine "'[w]hether the defendant has failed to exercise discretion which he has a duty to exercise; or to perform a duty required by law as to which he has no discretion.'" Conversely, the Board argues the court is limited to determining "[w]hether [the] determination was arbitrary and capricious or an abuse of discretion," pursuant to Rule 3(c). We review the court's legal conclusions, such as the correct standard of review, de novo. See Scottsdale Unified Sch. Dist. No. 48 of Maricopa Cty. v. KPNX Broad. Co., 191 Ariz. 297, ¶ 20, 955 P.2d 534, 539 (1998).

¶8 Although both parties couch their arguments in terms of Rule 3, that rule is inapplicable to this case. Ariz. R. P. Spec. Actions 1(b). The appeal from a denial of access to public records is a statutory special action authorized by A.R.S. § 39-121.02(A). See Carlson v. Pima County, 141 Ariz. 487, 491, 687 P.2d 1242, 1246 (1984). "[W]here a statutory special action is involved, the questions to be raised and considered are wholly unaffected by this Rule."⁴ Ariz. R. P. Spec. Actions 1(b) (only provisions of rules related to "parties, procedure, interlocutory orders and stays, and judgments" applicable to statutory special actions); see Ariz. R. P. Spec. Actions 3 (titled "Questions Raised"). Instead, "the questions 'considered' are . . . determined . . . by the statute which expressly authorized the writ." Miceli v. Indus. Comm'n, 135 Ariz. 71, n.1, 659 P.2d 30, 32 n.1 (1983). Consequently, Rule 3 is inapplicable to determining thecorrect standard of review utilized by trial courts faced with a special action brought pursuant to § 39-121.02(A). See Primary Consultants, L.L.C. v. Maricopa Cty. Recorder, 210 Ariz. 393, ¶¶ 11, 16, 111 P.3d 435, 439-40 (App. 2005) (rejecting argument documents not public records and thus trial court's review limited to question raised in Rule 3(c)).⁵

¶9 "The statute which expressly authorized the writ," Miceli, 135 Ariz. 71, n.1, 659 P.2d at 32 n.1, here is Arizona's Public Records Law. A.R.S. §§ 39-121 through 39-121.03. It dictates that "[p]ublic records and other matters . . . shall be open to inspection by any person."⁶ A.R.S. § 39-121; see Scottsdale Unified Sch. Dist., 191 Ariz. 297, ¶ 9, 955 P.2d at 537. The law evinces the state's "'open access' policy toward public records," Phx. Newspapers, Inc. v. Purcell, 187 Ariz. 74, 81, 927 P.2d 340, 347 (App. 1996), quoting Carlson, 141 Ariz. at 489, 687 P.2d at 1244, and "exists to allow citizens 'to be informed about what their government is up to,'" Scottsdale Unified Sch. Dist., 191 Ariz. 297, ¶ 21, 955 P.2d 534, 539-40, quoting U.S. Dep't of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 773 (1989).

¶10 Our supreme court, however, has recognized that "an unlimited right of inspection might lead to substantial and irreparable private or public harm." Carlson, 141 Ariz. at 491, 687 P.2d at 1246. It therefore has stated that a public official may "deny in the first instance the right of inspection if he thinks that the document[s are] privileged or confidential, or if he thinks that it would be detrimental to the interests of the state to permit [disclosure]." Mathews v. Pyle, 75 Ariz. 76, 81, 251 P.2d 893, 896 (1952).

¶11 Although a public official has the initial discretion to deny a request for access to public records, "under no circumstances should [that] determination be final." Id. Allowing a public official to be "the sole judge" as to what information should be available would be "inconsistent with all principles of Democratic Government." Id. at 80-81, 251 P.2d at 896; see also Church of Scientology v. City of Phx. Police Dep't, 122 Ariz. 338, 340, 594 P.2d 1034, 1036 (App. 1979) ("We are not persuaded that our statutory policy in favor of disclosure should be so easily, and permanently, thwarted by the unilateral and potentially self-serving inclination of government officials to classify files as confidential.").

¶12 Pursuant to § 39-121.02(A), the requesting party "may appeal the denial [of its request] through a special action in the superior court." The burden then falls on the official to prove "specifically how the public interest outweighs the right of disclosure." Phx. Newspapers, Inc. v. Keegan, 201 Ariz. 344, ¶ 19, 35 P.3d 105, 110 (App. 2001). Ultimately, the courts are the final arbiters of whether a public record must be disclosed. Mathews, 75 Ariz. at 81, 251 P.2d at 896; see also Carlson, 141 Ariz. at 491, 687 P.2d at 1246; A.H. Belo Corp. v. Mesa Police Dep't, 202 Ariz. 184, ¶ 14, 42 P.3d 615, 619 (App. 2002) ("It falls to Arizona courts to determine case by case, as the question arises, whether an asserted . . . interest does overcome the presumption.").

¶13 In sum, although the public official...