Phoenix New Times, L.L.C. v. Arpaio

• Decision Date: 05 February 2008
• Docket Number: No. 1 CA-CV 05-0768.,1 CA-CV 05-0768.
• Citation: 177 P.3d 275,217 Ariz. 533
• Parties: PHOENIX NEW TIMES, L.L.C., and John Dougherty, Plaintiffs/Appellants; v. Joseph M. ARPAIO, Duly Elected Sheriff of Maricopa County; Maricopa County, a political subdivision of the State of Arizona, Defendants/Appellees.
• Court: Arizona Court of Appeals

177 P.3d 275

217 Ariz. 533

PHOENIX NEW TIMES, L.L.C., and John Dougherty, Plaintiffs/Appellants; v. Joseph M. ARPAIO, Duly Elected Sheriff of Maricopa County; Maricopa County, a political subdivision of the State of Arizona, Defendants/Appellees.

No. 1 CA-CV 05-0768.

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

February 5, 2008.

Munger Chadwick PLC By Michael J. Meehan, Tucson, and Steven P. Suskin, Phoenix, Attorneys for Plaintiffs/Appellants.

Iafrate & Associates, By Michele M. Iafrate, Christine A. Davis, Phoenix, Attorneys for Defendants/Appellees.

OPINION

SNOW, Judge.

¶ 1 Phoenix New Times, L.L.C., and John Dougherty (collectively "the New Times") appeal the superior court's decision denying the New Times an award of its attorneys' fees incurred in compelling Maricopa County Sheriff Joseph M. Arpaio and Maricopa County to produce documents pursuant to Arizona's public records law, Arizona Revised Statutes ("A.R.S.") sections 39-121 through 39-121.03 (2004).

¶ 2 Because, with one exception, we reverse the superior court's determination that the requested documents were "promptly furnish[ed]," we remand to the superior court for an exercise of its discretion in determining whether to award the New Times its attorneys' fees under the statute.

FACTUAL AND PROCEDURAL HISTORY

¶ 3 Between May and September of 2004, a year in which Sheriff Arpaio was running for reelection, John Dougherty, then a reporter for the New Times, submitted a series of public records requests to the Maricopa County Sheriff's Office ("MCSO") pursuant to Arizona's public records law.

¶ 4 On September 23, 2004, still having received no documents, the New Times filed a statutory special action pursuant to A.R.S § 39-121.02(A), in which it asked the superior court to order the Sheriff to provide access to all public records responsive to the New Times' earlier requests. The New Times, pursuant to A.R.S. § 39-121.02(B), also asked the superior court to award it the reasonable costs and attorneys' fees it incurred in obtaining access to the public records.

¶ 5 Between October 4 and October 14, 2004, before Arpaio filed his answer to the special action, MCSO provided the previously requested records within its possession to the New Times. Arpaio then responded to the New Times' complaint on October 15, 2004, and alleged that all documents that existed and were within MCSO's control had been provided.

¶ 6 As a result, the principal remaining issue before the court was not access to the documents, but rather was the New Times' request that, pursuant to A.R.S. § 39-121.02(B), MCSO pay the attorneys' fees the New Times incurred in obtaining the documents. The relevant version of the statute in place at the time specified:

If the court determines that a person was wrongfully denied access to or the right to copy a public record and if the court finds that the custodian of such public record acted in bad faith, or in an arbitrary or capricious manner, the superior court may award to the petitioner legal costs, including reasonable attorney fees, as determined by the court.[¹]

¶ 7 The superior court did not hold an evidentiary hearing on the issue of attorneys' fees. Rather, it elected to allow the parties to brief the issues. In that briefing, the parties submitted for the court's consideration, and entered into the record, the complete deposition transcripts of MCSO public information officers Lisa MacPherson and Lt. Paul Chagolla, and of a manager at an MCSO substation, Lt. Edmund Shepherd. A partial deposition transcript of MCSO financial manager Loretta Barkell was also entered into the record.

¶ 8 The court ruled, in relevant part, as follows:

Petitioner alleges that the Defendant Sheriff has failed to timely disclose the public records requested by the Petitioners and that the Sheriff should be liable for costs and attorneys' fees. This Court rejects the Petitioners' claims as unsupported by anything other than argument and histrionics.

The record clearly reflects that the Defendant Sheriff of Maricopa County, Joseph Arpaio, has produced for copying and inspection all public records requested, which are in existence. The Defendant has even gone so far as to assist in the preparation of records that did not previously exist and to provide members of the Sheriffs Office for deposition or interview to explain why certain data or records requested by the Petitioners does not exist or does not exist in the forms requested by the Petitioners. Despite such cooperation, Petitioners allege bad faith on the part of the Defendant. I find no bad faith.

...

Having determined that all records in existence previously requested by the Petitioners were disclosed, and that they were disclosed within a reasonable time and in a reasonable manner, I must deny the relief requested by the Petitioners.

The court denied both parties' requests for attorneys' fees, but awarded Arpaio all costs incurred in defending the action because he was the prevailing party.

¶ 9 The court entered final judgment on September 26, 2005, and the New Times timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(B) (2003).

ANALYSIS

¶ 10 The New Times asks us to decide "whether the trial judge erred in denying [the] New Times' request for attorneys fees under the `bad faith, arbitrary or capricious' standard of A.R.S. § 39-121.02(B)." As the relevant statute indicates, however, for the New Times to be eligible for an award of attorneys' fees, MCSO must have both (1) wrongfully denied the New Times access to public records, and (2) acted in bad faith or in an arbitrary or capricious manner in doing so. A.R.S. § 39-121.02(B). We thus, first address whether MCSO wrongfully denied the New Times access to public records.

A. The Failure To "Promptly Furnish" Documents Constitutes A Wrongful Denial As A Matter of Law.

¶ 11 Whether Arpaio wrongfully denied the New Times access to public records is a question of law, which we review de novo. Cox Ariz. Publ'ns, Inc. v. Collins, 175 Ariz. 11, 14, 852 P.2d 1194, 1198 (1993); Bolm v. Custodian of Records of the Tucson Police Dep't, 193 Ariz. 35, 38, ¶ 7, 969 P.2d 200, 203 (App.1998). A denial of access to public records is deemed wrongful if the person requesting the records was, in fact, entitled to them. Cox, 175 Ariz. at 14, 852 P.2d at 1198. It is undisputed in this case that the New Times was entitled to the records eventually provided after the statutory special action was filed. The trial court concluded that the MCSO did not wrongfully deny the requested documents to the New Times because it produced them, albeit after the New Times filed a special action seeking production. But, that the documents were eventually provided is not the end of the inquiry.

¶ 12 Unlike public information statutes in some other jurisdictions, Arizona's statute specifies that when records are subject to disclosure the required response is the prompt and actual production of the documents. "Any person may request to examine or be furnished copies ... of any public record.... The custodian of such records shall promptly furnish such copies, printouts or photographs ..." A.R.S. § 39-121.01(D)(1) (emphasis added); see also Griffis v. Pinal County, 215 Ariz. 1, 5, ¶ 13, 156 P.3d 418, 422 (2007) (holding that "[i]f a document falls within the scope of the public records statute, then the presumption favoring disclosure applies"). The statute further specifies that to the extent the party does not receive a prompt response, "[a]ccess to a public record is deemed denied." A.R.S. § 39-121.01(E).

¶ 13 Therefore, the issue is whether the MCSO failed to promptly produce the records for each request submitted by the New Times. If it did, then, pursuant to the requirements of the statute, it denied access to public records and the superior court had discretion to award attorneys' fees.

¶ 14 Although Arizona law requires that the documents be promptly furnished, it does not specify a specific number of days from the request by which time a public body must furnish the documents.² We have previously defined "prompt" in this context as being "quick to act" or producing the requested records "without delay." West Valley View, Inc. v. Maricopa County Sheriffs Office, 216 Ariz. 225, 230, 121, 165 P.3d 203, 208 (App. 2007) (quoting Webster's New World Dictionary 1137 (2d ed.1980) ). In West Valley, in which the request was for a "single category of documents that, by definition, [were] available for immediate production," we held that the statute required MCSO to produce the documents "at once." Id. We also observed, however, that whether a government agency's response to a wide variety of document requests was sufficiently prompt "will ultimately be dependent upon the facts and circumstances of each request." Id. n. 8.

¶ 15 While we thus consider the facts and circumstances of each of the New Times' nine requests, we do so pursuant to the requirements of Arizona law. Arizona law places on MCSO the burden of establishing that its responses to the New Times' requests were prompt given the circumstances surrounding each request. See Cox, 175 Ariz. at 14, 852 P.2d at 1198 (holding that the "burden fell squarely upon [the Maricopa County Attorney], as a public official, to overcome the legal presumption favoring disclosure."); cf. Mitchell v. Superior Court, 142 Ariz. 332, 335, 690 P.2d 51, 54 (1984) (holding that the burden of showing that a harm will result from disclosure "is on the party that seeks non-disclosure rather than on the party that seeks access"); Elec. Privacy Info. Ctr. v. Dep't of Justice, 416 F.Supp.2d 30, 40 n. 8 (D.D.C.2006) (placing the burden of proof on the government agency to show that it is acting "as soon as practicable" under the federal Freedom of Information Act's ("FOIA") expedited processing provision).³

¶ 16 Further, when public records are requested from an agency, the agency has the burden of...