Griffis v. Pinal Cnty.

• Decision Date: 04 August 2006
• Docket Number: No. 2 CA–CV 2006–0052.,2 CA–CV 2006–0052.
• Citation: 141 P.3d 780,213 Ariz. 300
• Parties: Stanley GRIFFIS, Plaintiff/Appellant, v. PINAL COUNTY, Defendant/Appellee, and Phoenix Newspapers, Inc., an Arizona corporation, Intervenor/Appellee.
• Court: Arizona Court of Appeals

213 Ariz. 300

141 P.3d 780

Stanley GRIFFIS, Plaintiff/Appellant,

v. PINAL COUNTY, Defendant/Appellee,andPhoenix Newspapers, Inc., an Arizona corporation, Intervenor/Appellee.

No. 2 CA–CV 2006–0052.

Court of Appeals of Arizona, Division 2, Department A.

Aug. 4, 2006.

Review Granted Jan. 9, 2007.

Fennemore Craig, By Timothy Berg, Janice Procter–Murphy, and Theresa Dwyer, Phoenix, for Plaintiff/Appellant.

Robert Carter Olson, Pinal County Attorney, By Chris M. Roll and Allen C. McVey, Florence, for Defendant/Appellee.

Steptoe & Johnson, LLP, By David J. Bodney, Peter S. Kozinets, and Chris Moeser, Phoenix, for Intervenor/Appellee.

OPINION

PELANDER, Chief Judge.

¶ 1 This case raises a central issue of whether personal electronic mail messages (e-mails) sent or received by a government employee constitute "public records" that are presumptively open to public inspection under Arizona's Public Records Law, A.R.S. §§ 39–101 through 39–161, simply because the e-mails were transmitted on and are retained in a government-owned computer system. The trial court ruled that they do and, therefore, ordered appellee Pinal County to disclose to appellee Phoenix Newspapers, Inc. (PNI) all such e-mails, after redaction of certain confidential information, sent or received during a two-month period by plaintiff/appellant Stanley Griffis, former Pinal County Manager. Griffis appeals from the trial court's order dissolving a preliminary injunction the court previously had issued on his request. This court has jurisdiction pursuant to A.R.S. § 12–2101(F)(2). For the reasons set forth below, we affirm one portion of the trial court's order but reverse the balance.

BACKGROUND

¶ 2 The procedural history of this case is undisputed. Griffis served as Pinal County Manager for sixteen years until his suspension in early December 2005. During his employment, Griffis signed a form acknowledging that e-mail messages sent or received on the County's e-mail system "are generally considered public records." In addition, at all pertinent times, Griffis was subject to Pinal County's written policies relating to internet access and e-mail usage. Those policies provided, inter alia: all e-mail messages are county property and "not the private property of any employee;" e-mail messages "are considered Public Records, unless they fall into one of three exemption categories: (1) Confidentiality, (2) Personal Privacy, or (3) Best Interest of the State;"¹ "the County reserves the right to review, audit, intercept, access and disclose all messages created, received, or sent over the [County's e-mail] system;"² and "[e]mployees have no right of privacy, nor any expectation of any right of privacy, when accessing the Internet by use of County equipment."³

¶ 3 In early December 2005, the County placed Griffis on administrative leave to investigate allegations he had purchased weapons with funds belonging to the county sheriff without obtaining the sheriff's approval. Griffis apparently retired from the County shortly thereafter. At or around the time he was suspended, PNI began reporting on the investigation into Griffis's alleged misuse of public funds. Pursuant to Arizona's Public Records Law, § 39–121, PNI requested that the County provide it with all of Griffis's incoming and outgoing e-mail messages from October 1 to December 2, 2005.

¶ 4 In January 2006, the County released approximately 700 of Griffis's e-mail records to PNI. In doing so, however, the County withheld or redacted several hundred of Griffis's e-mails the County deemed personal in nature.⁴ After PNI threatened the County with legal action, the County agreed to release all of Griffis's e-mails but first gave him an opportunity to seek court protection from release of personal e-mails.⁵

¶ 5 In early February 2006, Griffis filed this action, seeking to block the release of 120 Pinal County e-mail records he asserted "were documents of a personal nature," including "communications regarding a personal vacation and ... purchases from online retailers." In its answer to Griffis's complaint, the County admitted the e-mail documents in question were of a personal nature.⁶ After an ex parte hearing in which the County declined to participate, the trial court issued a temporary restraining order and then a preliminary injunction prohibiting release of the documents Griffis had sought to protect.

¶ 6 PNI successfully intervened in the case and filed a motion, in which the County joined, to dissolve the preliminary injunction. At the trial court's instruction, the County prepared a log that identified each individual e-mail subject to the preliminary injunction. After Griffis redacted from the log all information he deemed purely personal, the redacted log was furnished to PNI and the County. Griffis also consented to the release of thirty of the e-mails for which he previously had sought protection and which had been covered by the preliminary injunction.

¶ 7 After receiving the parties' briefs and hearing argument, the trial court granted PNI's motion to dissolve the preliminary injunction and ruled that the remaining ninety e-mail records should be disclosed after redaction of "personally identifying information" such as dates of birth, social security numbers, personal addresses or telephone numbers, credit card numbers, any bank account numbers, or customer identification numbers. The trial court ruled as a matter of law "everything that is on a computer of the Pinal County ... governmental entity is presumed to be a public record," "any records generated on a public computer are presumptively open to public inspection," and the party objecting to disclosure must "establish some expectation of privacy which outweighs the right of the public to know what private matters are being involved or being engaged in on public time with public funds."

¶ 8 Finding insufficient Griffis's generalized assertions that his "privacy" or "reputation" would be invaded by release, and absent any request by Griffis for an in camera inspection of the e-mail records in question, the trial court ruled Griffis had not overcome the presumption of public access. Therefore, the court ordered the release of all the disputed e-mail records after redaction by Griffis of the excluded information. The trial court granted a limited stay, which this court extended after Griffis timely appealed from the trial court's order.

STANDARD OF REVIEW

¶ 9 We generally review a trial court's order dissolving a preliminary injunction for abuse of discretion. See Nu–Tred Tire Co. v. Dunlop Tire & Rubber Corp., 118 Ariz. 417, 420, 577 P.2d 268, 271 (App.1978). But a trial court's determination of what constitutes a public record is a question of law subject to our de novo review. Cox Ariz. Publ'ns, Inc. v. Collins, 175 Ariz. 11, 14, 852 P.2d 1194, 1198 (1993) ("Whether the denial of access to public records is wrongful is an issue of law which we review de novo."); see also

Ariz. Bd. of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 257, 806 P.2d 348, 351 (1991) ("We are not bound by the trial court's conclusions of law and are free to draw our own conclusions of law from the facts found by the trial court."). Here, after considering the parties' written and oral arguments on the issues but without conducting any evidentiary hearing, the trial court dissolved the preliminary injunction based on its legal conclusion that all e-mails contained on the County's computer system are public records under § 39–121. Therefore, our review of that order is de novo.

DISCUSSION

I

¶ 10 We begin our analysis by addressing the applicable Arizona statutes relating to public records and the most pertinent cases that have interpreted and applied those laws. Under § 39–121.01(B), "[a]ll officers and public bodies shall maintain all records ... reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by monies from the state or any political subdivision of the state." Subsection (D) of that statute provides that, "[s]ubject to § 39–121.03 [,][a]ny person may request to examine or be furnished copies, printouts, or photographs of any public record during regular office hours." § 39–121.01(D)(1). Similarly, § 39–121 states that "[p]ublic records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours." The Public Records Law, however, does not define "public records and other matters."

¶ 11 Consequently, Arizona courts have been called on to give meaning and effect to the law in various contexts. In Mathews v. Pyle, 75 Ariz. 76, 251 P.2d 893 (1952), a newspaper sought to inspect certain investigative documents furnished by the Attorney General to the governor. Then, as now, Arizona's public records statute, former A.C.A. § 12–412 (1939), included but did not define "public records" or "other matters." Drawing on other states' common law, however, our supreme court embraced the following three-part definition of "public record:"

— A record "made by a public officer in pursuance of a duty, the immediate purpose of which is to disseminate information to the public, or to serve as a memorial of official transactions for public reference[;]"

— A record that is required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law or directed by law to serve as a memorial and evidence of something written, said or done;

— A written record of transactions of a public officer in his office, which is a convenient and appropriate method of discharging his duties, and is kept by him as such, whether required by express provisions of law or not.

Id. at 78–79, 251 P.2d at 895, quoting State ex rel. Romsa v. Grace, 43 Wyo. 454, 5 P.2d 301, 303 (1931). The court concluded that

the documents received by the Governor in his official capacity were not intended to be classified by the legislature as public

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