London v. Broderick

• Decision Date: 18 February 2003
• Docket Number: No. 1 CA-CV 01-0605, No. 1 CA-SA 02-0037.
• Citation: 204 Ariz. 272,63 P.3d 303
• 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 Court of Appeals

63 P.3d 303

204 Ariz. 272

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.

Nos. -0605, -0037.

Court of Appeals of Arizona, Division 1, Department C.

February 18, 2003.

Ryan, Woodrow & Rapp, P.L.C. By Donna M. McDaniel, Frank L. Migray, Martin A. Bihn, Phoenix, for Plaintiff-Appellant.

Janet Napolitano, Attorney General By Pamela Culwell, Assistant Attorney General, Michael M. Walker, Assistant Attorney General, Phoenix, for Defendants-Appellees.

OPINION

WEISBERG, Judge.

¶ 1 Frederic London ("London") appeals from the denial of his request for a Maricopa County Adult Probation Department ("MCAPD") investigative file pertaining to London, which was the sole issue raised by him in an administrative review action filed pursuant to Rule 123, Rules of the Supreme Court of Arizona ("Rule 123"). London also appeals from the dismissal of his subsequent special action complaint, based on Arizona's Public Records Law,¹ in which he again sought the same documents. We have consolidated these two appeals.

¶ 2 On appeal, London concedes that Rule 123 controls over the Public Records Law to the extent that the two conflict. We therefore consider whether the investigative file was exempted from disclosure pursuant to Rule 123, which governs public access to the records of all courts and judicial administrative offices of the State of Arizona. See Ariz. R. Sup.Ct. 123(a). For the reasons discussed, we reverse the decisions of the trial courts and conclude that MCAPD should have produced the investigative file to London when requested.²

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 London was employed as a probation officer with MCAPD. On December 20, 2000, MCAPD placed him on paid administrative leave while it investigated allegations of his misconduct. On February 8, 2001, MCAPD presented London with an official Notice of Charges of misconduct. The notice advised London that he could respond to the charges at a pre-disciplinary hearing on February 26, 2001.

¶ 4 On February 21, 2001, London served a public records request on MCAPD, seeking, among other items, its investigative file. London also asked that the pre-disciplinary hearing be rescheduled for March 19, 2001, to allow him adequate time to review the requested documents, as well as prepare responses to the charges against him. MCAPD agreed to reschedule.

¶ 5 On March 13, 2001, MCAPD advised London that he could pick up the requested documents after 1:00 p.m. the next day. When received, those documents included a March 14th letter from Division Director Vicki Biro explaining that the investigative notes and witness statements would not be provided because they were "not public record[s] until the disciplinary hearing is completed." On March 16, London sent a written objection to MCAPD regarding its refusal to provide the withheld materials.

¶ 6 On March 19, 2001, the parties attended the pre-disciplinary hearing. Barbara Broderick, MCAPD Chief Probation Officer, agreed to hear only a portion of the charges against London and to stay the balance of the pre-disciplinary hearing pending London's special action in superior court.

¶ 7 London then filed a special action in Maricopa County Superior Court pursuant to A.R.S. § 39-121.02(A) (2001), the Public Records Act. The case was assigned to Judge Roland J. Steinle, III. The Arizona Attorney General's Office, on behalf of MCAPD, wrote London's counsel asking London to voluntarily dismiss the special action because Rule 123 required that the records request be pursued as an administrative review action. Although London chose not to dismiss the special action, his counsel responded that he construed Biro's letter as "a denial for Rule 123 purposes." MCAPD then moved to dismiss London's special action, arguing that Rule 123 controlled and, therefore, the court lacked subject matter jurisdiction over the special action, or, alternatively, that even if jurisdiction were proper, the requested information was confidential under Rule 123(e)(6) and therefore shielded from disclosure.

¶ 8 Meanwhile, London filed a separate administrative review action in superior court pursuant to Rule 123(f)(5)(A), challenging MCAPD's denial of access to the subject records. This case was assigned to Judge Colin F. Campbell. The special action before Judge Steinle was subsequently stayed while Judge Campbell undertook his review.

¶ 9 Following his review, Judge Campbell denied London's public access request to the investigative records. Judge Campbell determined that the subject documents were not public records pursuant to Rule 123(e)(1), which exempts employee records from disclosure, and Rule 123(e)(6), which exempts pre-decisional administrative records from disclosure. Accepting Judge Campbell's ruling regarding the records' confidentiality under Rule 123, Judge Steinle then granted MCAPD's motion to dismiss the special action. Judge Steinle held that the records are "confidential by law and not subject to disclosure under A.R.S. § 39-121."

¶ 10 Next, the pre-disciplinary hearing was concluded and London's employment was terminated. MCAPD then moved to unseal the investigative file in order to provide it to London prior to his termination hearing.³

¶ 11 Meanwhile, London appealed from Judge Steinle's dismissal order and filed a Petition for Special Action with this court seeking review of Judge Campbell's ruling. We consolidated the two cases. We have jurisdiction over this matter pursuant to A.R.S. § 12-2101(B) (1994).

DISCUSSION

¶ 12 Asserting Rule 123, London challenges the trial court's denial of his request for MCAPD's investigative file.⁴ We review rulings regarding the interpretation of statutes and court rules de novo. Greenwald v. Ford Motor Co., 196 Ariz. 123, 124, ¶ 4, 993 P.2d 1087, 1088 (App.1999) (interpretation and application of court rule is question of law, which appellate court reviews de novo); Patterson v. Maricopa County Sheriff's Office, 177 Ariz. 153, 156, 865 P.2d 814, 817 (App.1993) (interpretation of statute or rule presents legal rather than factual questions, which court considers de novo).

Rule 123(e)(1)

¶ 13 In the administrative review action, Judge Campbell concluded that the documents sought were not public records under Rule 123(e)(1), which exempts employee records from disclosure, and therefore not releasable to London. Thereafter, relying on Judge Campbell's ruling, Judge Steinle granted MCAPD's motion to dismiss the special action, holding that the records are "confidential by law and not subject to disclosure under A.R.S. § 39-121."

¶ 14 On appeal, MCAPD now concedes that the documents were not shielded from production by Rule 123(e)(1). MCAPD recognizes, and we agree, that Rule 123(e)(1)(G) allows an employee to waive the protections of Rule 123(e)(1) and authorize the release of his or her employment information to the public. London's public records request constituted such a waiver. Rule 123(e)(1), therefore, ought not have prevented London's access to the investigative file.

Rule 123(e)(6)

¶ 15 Unlike the protections of Rule 123(e)(1), the protections of Rule 123(e)(6) cannot be waived. MCAPD continues to assert that Rule 123(e)(6), which exempts predecisional administrative records from disclosure, authorized its withholding of the investigative file. In response, London argues (1) that he is not a member of the "public" from whom the Rule prevents disclosure and (2) that Rule 123(e)(6) is inapplicable here because the investigative file is not a "preliminary" or "pre-decisional" document shielded by that subsection. We disagree with London's first argument, but agree with the second.

¶ 16 To begin, Rule 123 controls public access to the records of all courts and judicial administrative offices of the State of Arizona. Ariz. R. Sup.Ct. 123(a). The parties agree that MCAPD is such an administrative office. However, London challenges the application of Rule 123 to this case, arguing that it governs only "public access" to judicial records, and, as a probation officer with MCAPD, he is not a member of the "public" under the rule.

¶ 17 As MCAPD notes, London never raised this argument in the special action below. Accordingly, he could be disallowed from raising it now on appeal. Schoenfelder v. Ariz. Bank, 165 Ariz. 79, 88, 796 P.2d 881, 890 (1990) (as a general rule, appellate courts will not review an issue on appeal that party did not raise and argue in trial court). However, it is within our discretion whether to apply this rule. City of Tempe v. Fleming, 168 Ariz. 454, 456, 815 P.2d 1, 3 (App.1991) (rule that argument not asserted at trial court cannot be considered on appeal is procedural, not jurisdictional, and may be suspended in court's discretion). In our discretion, we choose to consider this argument, which we reject on its merits.

¶ 18 Rule 123 defines the term "public" as:

[T]hose persons who are not judges, clerks, administrators, professionals or other staff employed by or working under the supervision of the court, or employees of other public agencies who are authorized by state or federal rule or law to inspect and copy closed court records.

Ariz. R. Sup.Ct. 123(b)(11). London asserts that, given his job with MCAPD, he did not submit his records request as a member of the "public," but rather as an employee working under the supervision of the court. We disagree.

¶ 19 Rule 123's provisions should "be read and construed in context with the related...