London v. Broderick

• Decision Date: 11 December 2003
• Docket Number: No. CV-03-0090-PR.,CV-03-0090-PR.
• Citation: 206 Ariz. 490,80 P.3d 769
• Parties: Frederic LONDON, a married man, Plaintiff-Appellant, v. Barbara BRODERICK, Chief Probation Officer; Vicki Biro, Division Director; Maricopa County Adult Probation Department, a State entity, Defendants-Appellees. Frederic London, a married man, Petitioner, v. The Honorable Colin F. Campbell, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Barbara Broderick, Chief Probation Officer; Vicki Biro, Division Director; Maricopa County Adult Probation Department, a State entity, Real Parties in Interest.
• Court: Arizona Supreme Court

80 P.3d 769

206 Ariz. 490

Frederic LONDON, a married man, Plaintiff-Appellant, v. Barbara BRODERICK, Chief Probation Officer; Vicki Biro, Division Director; Maricopa County Adult Probation Department, a State entity, Defendants-Appellees.

Frederic London, a married man, Petitioner, v. The Honorable Colin F. Campbell, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Barbara Broderick, Chief Probation Officer; Vicki Biro, Division Director; Maricopa County Adult Probation Department, a State entity, Real Parties in Interest.

No. CV-03-0090-PR.

Supreme Court of Arizona, En Banc.

December 11, 2003.

Terry Goddard, Arizona Attorney General by Michael M. Walker, Assistant Attorney General, Phoenix, Attorneys for Defendants-Appellees/Real Parties in Interest.

Ryan Woodrow & Rapp, PLC, by Martin A. Bihn and Donna M. McDaniel and Frank L. Migray, Phoenix, Attorneys for Plaintiff-Appellant/Petitioner.

OPINION

BERCH, Justice.

¶ 1 This case analyzes whether Arizona Supreme Court Rule 123, the court's "open records" provision, permits a probation department employee who faces disciplinary charges to obtain disclosure of the employer's investigatory file pertaining to those charges before the employee's pre-disciplinary interview. We conclude that while Rule 123 creates a presumption that court records are available for public viewing, the custodian may overcome that presumption by showing that the government's interest in confidentiality outweighs the public's interest in disclosure. Because in this case the Maricopa County Adult Probation Department has shown an interest that overcomes the presumption of openness and outweighs the public interest in disclosure, we affirm the decision of the trial court that the investigatory file need not be disclosed before the pre-disciplinary interview.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Frederic London worked for the Maricopa County Adult Probation Department ("MCAPD") as a probation officer. In late December of 2000, responding to allegations that London had engaged in misconduct, MCAPD placed him on administrative leave. On February 8, 2001, MCAPD gave London a seven-page notice, setting forth in detail the charges against him. It also advised London that he could respond to the charges in writing and at a "pre-disciplinary hearing."¹

¶ 3 Before London's pre-disciplinary interview, he made a public records request seeking several items, including MCAPD's investigatory file containing evidence of the charges against him. MCAPD made some documents available to London, but advised him that the investigative file was not public and would not be released until after the pre-disciplinary interview, which took place on March 19, 2001. At the interview, only some of the charges were discussed. The parties agreed to postpone discussion of several other charges pending the outcome of London's challenge to MCAPD's refusal to disclose the investigatory file.

¶ 4 London filed a special action in superior court based on Arizona's Public Records Act, Ariz.Rev.Stat. ("A.R.S.") § 39-121 to -125 (2001 & Supp.2002), and a separate administrative review action pursuant to Supreme Court Rule 123, the court's open records provision, to compel production of the investigatory file. In the administrative review action, Presiding Judge Colin F. Campbell found that the file was not subject to disclosure under Rule 123. In the special action, Judge Roland J. Steinle, III, concluded that the records were "confidential by law and not subject to disclosure under A.R.S. § 39-121."

¶ 5 London appealed both rulings. On appeal, London conceded that Rule 123, and not the Public Records Act, controlled the inquiry. Thus the court of appeals addressed only London's Rule 123 claim, concluding that nothing in Rule 123 exempts the investigatory file from disclosure and reversing Judge Campbell's decision. See London v. Broderick, 204 Ariz. 272, 274,

¶ 2, 63 P.3d 303, 305 (App.2003).

¶ 6 We granted MCAPD's petition for review to resolve whether Arizona Supreme Court Rule 123 permits a probation department employee who faces disciplinary charges to obtain the investigatory file pertaining to those charges before the pre-disciplinary interview. We conclude that the file may be shielded from disclosure at least until the charges have been substantiated.

DISCUSSION

A. Mootness

¶ 7 Because London was eventually given his investigatory file before his hearing on the decision to terminate his employment, the issue presented in this case is moot. As a prudential matter, however, we elect to decide the case because the issue it raises is important and, as long as there are government employees, will likely recur. See Big D Constr. v. Court of Appeals, 163 Ariz. 560, 562-63, 789 P.2d 1061, 1063-64 (1990)

(noting that this court may, as "a matter of prudential or judicial restraint," consider moot issues when "significant questions of public importance are presented and are likely to recur").

B. Rule 123; Open Records

1. Public records background

¶ 8 Rule 123, the court's open records provision, recognizes the public's significant interest in access to information regarding the courts and honors the presumption that court records be open and available to the public. Its basic disclosure provision is as follows:

Historically, this state has always favored open government and an informed citizenry. In the tradition, the records in all courts and administrative offices of the Judicial Department of the State of Arizona are presumed to be open to any member of the public for inspection or to obtain copies at all times during regular office hours at the office having custody of the records.

Ariz. R. Sup.Ct. 123(c)(1) (emphasis added). As the public records law does for public offices, the court's open records rule implements the public's interest in seeing that the courts perform efficiently and effectively by providing access to court records. Compare A.R.S. § 39-121 ("Public records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours."), with Ariz. R. Sup.Ct. 123. Public access to court records helps further the democratic value of having knowledgeable and informed citizens and is thus instrumental to a state founded on principles of self-governance.

¶ 9 But sometimes the benefits of public disclosure must yield to the burden imposed on private individuals or the government itself by disclosure. Such circumstances have spawned common-law limitations on public disclosure to protect privacy interests, confidential information, and certain governmental interests. See, e.g., Carlson v. Pima County, 141 Ariz. 487, 491, 687 P.2d 1242, 1246 (1984)

(noting that "an unlimited right of inspection might lead to substantial and irreparable private or public harm," which must be weighed against "the general policy of open access" to determine whether disclosure is proper); Mathews v. Pyle, 75 Ariz. 76, 80-81, 251 P.2d 893, 896 (1952) (holding that if disclosure "would be detrimental to the best interests of the state," records may be kept from the public). These common-law limitations attempt to accommodate the tension between the public right to open government and the need to protect confidential information, personal privacy of those who interact with government offices, and overriding interests of the government. See Carlson, 141 Ariz. at 490,

687 P.2d at 1245. These common-law exceptions to disclosure circumscribe unfettered access and allow the government to withhold documents from the public if the custodian of the records articulates sufficiently weighty reasons to tip the balance away from the presumption of disclosure and toward non-disclosure.

¶ 10 Section (c)(1) of Rule 123 incorporates into the court's open records rule provisions analogous to the common-law exceptions to the public records law. Section (c)(1) provides that "in view of the possible countervailing interests of confidentiality, privacy or the best interests of the state[,] public access to some court records may be restricted or expanded...." Ariz. R. Sup.Ct. 123(c)(1). Rule 123 also exempts from presumptive disclosure several other categories of records: certain employee records, employment or volunteer applications, judicial case assignments, security records, procurement records, pre-decisional documents, library records, attorney and judicial work product, juror records, proprietary and licensed material, and copyrighted documents and materials. See id. § (e)(1)-(11). Rule 123 also provides several exceptions, based on practical considerations, that allow the courts to shield documents if disclosure would impose "an undue financial burden," or the request is duplicative or "harassing[,] or substantially interfere[s]" with court functions or operations. Id. § (f)(4)(A)(i)-(iv). Rule 123's explicit exceptions to disclosure and the common-law exceptions included in section (c)(1) allow the courts to perform their duties efficiently, without imposing an unjustified burden on requesting individuals or the courts.²

2. Application of Rule 123 to this case³

¶ 11 One seeking documents from the court need not state a reason for requesting them. We presume that public documents will be disclosed. See id. § (c)(1). If a request is delayed or denied, the custodian must provide a written explanation of reasons for denying the request. See id. § (f)(4)(B)(i). If the custodian of court records articulates a valid interest in shielding a document, however, the presumption of disclosure evaporates and the court's interest in non-disclosure is balanced against the public interest in obtaining the records. Scottsdale Unified Sch. Dist. v. KPNX Broad. Co., 191 Ariz. 297, 300, ¶ 9, 955 P.2d 534, 537 (1998).

¶ 12 In response to London's request for the investigatory file in this case, MCAPD asserted that the file should remain...