Hodai v. City of Tucson

• Decision Date: 07 January 2016
• Docket Number: No. 2 CA–CV 2015–0018.,2 CA–CV 2015–0018.
• Citation: 365 P.3d 959
• Parties: Beau HODAI, Plaintiff/Appellant, v. The CITY OF TUCSON, A Municipal Corporation; and the Tucson Police Department, A Municipal Agency, Defendants/Appellees.
• Court: Arizona Court of Appeals

365 P.3d 959

Beau HODAI, Plaintiff/Appellant,

v.The CITY OF TUCSON, A Municipal Corporation; and the Tucson Police Department, A Municipal Agency, Defendants/Appellees.

No. 2 CA–CV 2015–0018.

Court of Appeals of Arizona, Division 2.

Jan. 7, 2016.

ACLU Foundation of Arizona By Daniel J. Pochoda and Darrell Hill, Phoenix, Counsel for Plaintiff/Appellant.

Michael G. Rankin, Tucson City Attorney By Dennis P. McLaughlin and Michael W. L. McCrory, Tucson, Counsel for Defendants/Appellees.

Presiding Judge MILLER authored the opinion of the Court, in which Chief Judge ECKERSTROM and Judge ESPINOSA concurred.

OPINION

MILLER, Presiding Judge:

¶ 1 In this appeal from a superior court special action to compel disclosure of public records withheld by the City of Tucson,¹ we address whether the best interests of the state support the court's decision denying all relief. In concluding that disclosure of some redacted records does not harm the government or its people, we reverse in part and direct the court to address ancillary matters on remand.

Facts and Procedural Background

¶ 2 In October 2013, Hodai requested TPD public records related to cell phone tracking equipment called "Stingray." The city describes Stingray as a surveillance technology device² that could "assist in abduction/kidnapping investigations," but was used in only a few criminal investigations before the city discontinued its use.³

¶ 3 The records request specified: (1) TPD records and "work product" using or related to Stingray; (2) communications about the purchase, use, and maintenance of Stingray equipment; and, (3) all communications with Stingray's manufacturer, Harris Corporation. Hodai identified the equipment as having been purchased by the city several years earlier with a specific federal grant. TPD initially provided four redacted documents in response. The twenty pages consisted of contract information and an email exchange concerning redactions requested by Harris. No information regarding Stingray's use or cases in which it was employed was disclosed. Hodai filed two additional related records requests in November and December, but no further documents were produced. Hodai included in each records request that the city inform him if records were withheld and the reasons for the non-disclosure. See A.R.S. § 39–121.01(D)(2). The complaint alleged a TPD sergeant informed him after his second request that it would be too time-consuming to locate search warrants and other responsive documents.

¶ 4 In March 2014, Hodai filed a statutory special action requesting an order directing the city to provide responsive records and awarding Hodai attorney fees and costs. The city filed an answer in which it generally denied it had failed to comply with the public records law. It also averred that in "its efforts to prepare for this lawsuit," it found TPD training materials, an operational manual, and forms for Stingray use. It declined, however, to disclose these materials based on a review by the Federal Bureau of Investigation (FBI) that opined disclosure would not be in the best interests of the state. The city did, however, offer them for the trial court's in camera review. Additionally, it stated it was aware of four closed and one open criminal investigations in which Stingray had been used. It also offered for in camera inspection the "full case files" of the completed investigations. Finally, the city attached two affidavits to its answer: (1) an FBI agent's explanation of how law enforcement uses Stingray and the detrimental effect if technical information about it were released; and, (2) a TPD lieutenant's testimony about the responsive documents, as well as TPD's use and maintenance of Stingray.

¶ 5 The city subsequently filed several hundred pages under seal accompanied by a motion requesting the trial court inspect documents in camera. The documents included law enforcement training materials, a form used for officers to request Stingray monitoring, a "data dump" of raw data received from the equipment during an investigation, and five police reports from ongoing and closed criminal cases. The city did not wait for a court ruling to disclose the closed case reports, however; the records were produced soon after Hodai requested them by their specific case numbers. At oral argument on the motion to inspect, the court ordered the city to provide a list of documents withheld and reasons why, additionally ordering the parties to file briefs. The court also concluded at the hearing that the records of the ongoing case should be withheld because the investigation was sensitive and "release of records from that would jeopardize" it.

¶ 6 After briefing by the parties, but without further hearings, the trial court concluded in an unsigned ruling that all documents produced in camera were properly withheld and it denied all other requests for documents. Hodai appealed and we suspended jurisdiction for the trial court to enter a final judgment. See Ariz. R. Civ. App. P. 3(b), 9(c). The court having done so, we have jurisdiction over the appeal pursuant to A.R.S. §§ 12–2101(A)(1) and 12–120.21. See Ariz. R. P. Spec. Actions 8(a).

Discussion

¶ 7 Arizona's public records law mandates "[public records] shall be open to inspection by any person at all times during office hours." A.R.S. § 39–121. A person need not demonstrate a particular purpose to justify disclosure. Bolm v. Custodian of Records of Tucson Police Dep't, 193 Ariz. 35, ¶ 10, 969 P.2d 200, 204 (App.1998) ("A person's right to public records under [§ 39–121 ] is not conditioned on his or her showing, or a court finding, that the documents are relevant to anything."). The fact that the public record exists is sufficient to create a presumption requiring disclosure. See Griffis v. Pinal Cty., 215 Ariz. 1, ¶ 8, 156 P.3d 418, 421 (2007). Nonetheless, a public officer may refuse release or inspection of a public record if such disclosure "might lead to substantial and irreparable private or public harm." Carlson v. Pima Cty., 141 Ariz. 487, 491, 687 P.2d 1242, 1246 (1984). Discretionary refusal to disclose based on the best interests of the state is subject to judicial scrutiny. Id. "Th [e] ‘best interests of the state’ standard is not confined to the narrow interest of either the official who holds the records or the agency he or she serves. It includes the overall interests of the government and the people." Phx. Newspapers, Inc. v. Keegan, 201 Ariz. 344, ¶ 18, 35 P.3d 105, 109–10 (App.2001). The government has the burden of specifically demonstrating how production of documents would be detrimental to the best interests of the state. Cox Ariz. Publ'ns, Inc. v. Collins, 175 Ariz. 11, 14, 852 P.2d 1194, 1198 (1993).

¶ 8 Upon a determination that the documents at issue are clearly public records within the meaning of the statute, the court determines whether the government's proffered explanation of public harm outweighs the policy in favor of disclosure. Carlson, 141 Ariz. at 491, 687 P.2d at 1246 ; Judicial Watch, Inc. v. City of Phx., 228 Ariz. 393, ¶¶ 10, 17–18, 267 P.3d 1185, 1187, 1189 (App.2011). The parties do not dispute, and we agree, that the Stingray documents are public records. Additionally, the trial court appropriately undertook the balancing test pursuant to Carlson. We defer to the trial court's factual findings unless clearly erroneous, but review de novo whether its denial of access was improper. Keegan, 201 Ariz. 344, ¶ 11, 35 P.3d at 108–09. We are not bound by the trial court's findings if clearly erroneous. City of Tucson v. Morgan, 13 Ariz.App. 193, 195, 475 P.2d 285, 287 (1970).

Quick Reference Sheets and Training Materials

¶ 9 Hodai argues the trial court erred by finding the city properly withheld three "quick reference" sheets, an equipment authorization form, and a PowerPoint presentation. Hodai articulated several reasons in the form of questions to support disclosure: (1) whether TPD officers sought warrants before using the technology, (2) whether use of the technology forces all cell phones in the area to register their identity and location, (3) whether data belonging to third parties is protected, and (4) whether the government is candid with the courts about the capabilities of the technology. The trial court recognized these rationales to be "legitimate and important public purposes," but irrelevant in this context because all of the records simply showed how to use the equipment.

¶ 10 To support its argument that nondisclosure of the training materials served the best interests of the state, the city relied on the affidavit of a special agent with the FBI. The agent stated that disclosure of information about cell site simulators would "provide adversaries with critical information about the capabilities, limitations, and circumstances of their use ... [and] provide them the information necessary to develop defensive technology, modify their behaviors, and otherwise take countermeasures designed to thwart the use of this technology."⁴ He also stated that even minor details "may reveal more information than their apparent insignificance suggests because, much like a jigsaw puzzle, each detail may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself." Hodai provided no evidence to the trial court to dispute the validity of the FBI affidavit, which authorized the trial court to accept the factual statements as uncontested. Cf. GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 5, 795 P.2d 827, 831 (App.1990) (in summary judgment context, opposing party's failure to provide competent evidence controverting moving party's affidavits, facts alleged may be considered true).

¶ 11 Because neither Hodai nor his attorney had access to documents submitted under seal, he could not address the trial court's conclusion that the public records only "show how to use the equipment." He instead argues, as he did below, that...