KPNX-TV v. Superior Court In and For County of Yuma

• Decision Date: 02 November 1995
• Docket Number: No. 1,KPNX-T,L,1
• Citation: 183 Ariz. 589,905 P.2d 598
• Parties: ew Ruggiero and the First Amendment Coalition of Arizona, Inc., Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF YUMA, The Honorable H. Stewart Bradshaw, a judge thereof, Respondent Judge, Jack R. HUDSON, Jr., the Yuma County Attorney's Office and State of Arizona, Respondents/Real Parties in Interest. CA SA 95-0228.
• Court: Arizona Court of Appeals

Page 598

905 P.2d 598

183 Ariz. 589

KPNX-TV, Lew Ruggiero and the First Amendment Coalition of Arizona, Inc., Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF YUMA, The Honorable H. Stewart Bradshaw, a judge thereof, Respondent Judge Jack R. HUDSON, Jr., the Yuma County Attorney's Office and State of Arizona, Respondents/Real Parties in Interest.

No. 1 CA SA 95-0228.

Court of Appeals of Arizona,

Division 1,

Department A.

Nov. 2, 1995.

[183 Ariz. 591] Brown & Bain, P.A. by Daniel C. Barr, Anthony L. Marks, Sarah Ellison Porter, Phoenix, for Petitioners.

David S. Ellsworth, Yuma County Attorney by Mark Edward Hessinger, Yuma, for Respondents/Real Parties in Interest.

OPINION

NOYES, Presiding Judge.

Petitioners seek special action review of a trial court order denying public access to two videotapes in a Yuma Police Department investigation file. We have jurisdiction pursuant to Arizona Revised Statutes Annotated ("A.R.S.") section 12-120.21(A)(4) (1992) and the Rules of Procedure for Special Actions. Because Petitioners have no plain, speedy, and adequate remedy by appeal, we accept jurisdiction. Because we conclude that the videotapes are public records and that the Yuma County Attorney's Office ("the State") has shown good reason to deny public access to only one of the tapes, we grant partial relief.

Facts

On July 4, 1995, two members of the Southwest Border Alliance ("SBA") task force were murdered and a third was wounded at SBA headquarters in Yuma. Yuma County Deputy Sheriff Jack Hudson, Jr. ("Defendant") was quickly arrested and charged with the crimes. On August 1, Petitioners filed a written request with the Yuma Police Department for copies of materials in the investigation file. The department disclosed many records, but it withheld a urinalysis report, a crime scene videotape, and a surveillance videotape.

The State filed a motion in superior court, joined in by Defendant, requesting that the court conduct an in camera inspection of the withheld items and deny public access to them. The parties argued the motion and, on August 30, the trial court ordered disclosure of the urinalysis report but not the two videotapes. The court also ordered that Petitioners not publish the urinalysis report until noon on September 8, to allow any party time to seek review of the disclosure order. On September 6, Petitioners filed this Petition for Special Action. When we denied their request for an expedited hearing, Petitioners requested relief from the supreme court.

On September 7, the supreme court--having been advised that neither the State nor Defendant would seek appellate review regarding the urinalysis report--vacated that portion of the order delaying publication of the urinalysis report until September 8. The urinalysis report issue having become moot, we decline to address it. We address only Petitioners' request for access to the two videotapes and their claim for attorneys' fees.

Public Records

A.R.S. section 39-121.01(B) (1985) provides that "[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 funds from the state or any political subdivision thereof." Arizona police investigative reports are public records. Little v. Gilkinson, 130 Ariz. 415, 416, 636 P.2d 663, 664 (App.1981) ("Although many states exempt police investigative reports from their public-records access statutes, Arizona does not. See generally, Annot., 82 A.L.R.3d 19.").

The parties do not seriously dispute whether the two videotapes in question are public records, but there is no Arizona authority on the subject. We find analogous authority persuasive. In Valley Broadcasting Co. v. United States District Court, the Ninth Circuit found that audiotapes and videotapes admitted into evidence at a criminal trial are subject to the rules regarding public access to court records. 798 F.2d 1289 (9th Cir.1986). Arizona Supreme Court Administrative Order 95-35, filed on June 7, 1995, defines "court records" to include "all existing documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other materials, regardless of physical form or characteristics, made or received pursuant to law or in connection with the transaction of any official business by the court." Similarly, we conclude that Arizona's definition of "public records" can include videotapes and does include the two videotapes at issue in this case.

Disclosure

Public records are presumed open to the public for inspection. Star Publishing Co. v. Pima County Attorney's Office, 181 Ariz. 432, 434, 891 P.2d 899, 901 (App.1994). The burden falls solely on the public official to overcome the presumption favoring disclosure. Cox Arizona Publications, Inc. v. Collins, 175 Ariz. 11, 14, 852 P.2d 1194, 1198 (1993). To justify denying access to public records, the public official must demonstrate specifically how production of the records would violate rights of privacy or confidentiality or would be detrimental to the best interests of the state. Id. Whether a denial of access to public records is wrongful is an issue the appellate courts review de novo. Id.

The State argued that the crime scene videotape should not be released because it offered "a walking tour through the outside grounds and the inside of that facility" and exposed various security measures including the floor plan and contents of the facility's offices and evidence room. Because the facility contains drugs, police equipment, investigative files, and confidential informant information, the State argued that the facility might be a burglary target, and that a burglar would receive valuable intelligence from the crime scene videotape. The State conceded that the surveillance videotape did not show much of the facility. However, the State argued that the area shown on this tape--the evidence locker--is not open to the public and, further, that the tape shows the location of the surveillance camera and the faces of four undercover officers, including the surviving victim.

In denying disclosure of the two videotapes, the trial court found as follows:

The two video tapes appear, at least in this court's view, to be sufficiently revealing of or related to the internal security of the Southwest Border Alliance and those who are employed there to be closed. (In the instance of the security tape it shows the defendant on approximately 6 frames out of at least 20,000 frames, and he is doing nothing whatsoever in any of them. Those 6 frames and many other frames on the tape, however, depict the location not only of the camera's view; its relation to the evidence room; and of the content and other security of the room.)

Having viewed both tapes, we conclude that the State's arguments and the trial court's findings are sustainable regarding the surveillance camera videotape. However, we find no specific reason articulated by the State, found by the trial court, or apparent from the tape itself to warrant denial of public access to the crime scene videotape.

The twenty-minute crime scene videotape focuses on physical evidence in and around the SBA building. The exterior footage shows details of a parking lot surrounded by a chain-link fence. Any vehicles and security devices depicted on the tape appear to be in plain view of anyone in the area, and the record contains no indication to the contrary. The interior footage shows ordinary-appearing government offices, cubicles, filing cabinets, desks, and other furnishings and accessories. The tape contains occasional...