Phoenix Newspapers, Inc. v. Ellis

• Decision Date: 12 June 2007
• Docket Number: No. 1 CA-SA 07-0099.,1 CA-SA 07-0099.
• Citation: Phoenix Newspapers, Inc. v. Ellis, 159 P.3d 578, 215 Ariz. 268 (Ariz. App. 2007)
• Parties: PHOENIX NEWSPAPERS, INC., an Arizona corporation, Petitioner, v. The Honorable Lindsay ELLIS, Judge Pro Tem of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Jane Doe, a minor, and The Scottsdale Unified School District, Real Parties in Interest.
• Court: Arizona Court of Appeals

159 P.3d 578

215 Ariz. 268

PHOENIX NEWSPAPERS, INC., an Arizona corporation, Petitioner, v. The Honorable Lindsay ELLIS, Judge Pro Tem of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge Jane Doe, a minor, and The Scottsdale Unified School District, Real Parties in Interest.

No. 1 CA-SA 07-0099.

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

June 12, 2007.

Steptoe & Johnson LLP By David J. Bodney, Peter S. Kozinets, Chris Moeser, Phoenix, Attorneys for Petitioner.

Knapp & Roberts PC By Craig A. Knapp, John C. Breslo, Scottsdale, Attorneys for Real Party in Interest Doe.

OPINION

IRVINE, Judge.

¶ 1 Phoenix Newspapers, Inc. ("PNI") petitions this court in a special action challenge to the trial court's order that a notice of claim filed with a school district is not a public record subject to disclosure under Arizona's public records law, Arizona Revised Statutes ("A.R.S.") sections 39-121 to 39-121.03 (2001 and Supp.2006). The Notice of Claim ("Notice") was filed on behalf of a minor, Jane Doe ("Doe"), who was the victim of a sexual assault at one of the district's high schools. We find that the case is appropriate for special action review and accept jurisdiction. We further find that the Notice is a public record and therefore grant relief.

FACTS AND PROCEDURAL HISTORY

¶ 2 On August 25, 2006, police arrested a school janitor on suspicion of assaulting Doe, a fourteen-year-old student at a Scottsdale high school. The assault occurred in a restroom at the high school shortly after the end of the school day. The suspect was later indicted on charges of kidnapping, sexual conduct with a minor, public sexual indecency to a minor and sexual abuse. The events were the subject of several articles in PNI's newspaper. One of the articles reported that the district held a public meeting to address parents' concerns about school safety and plans for new security procedures.

¶ 3 In November 2006, the probate division of the Maricopa County Superior Court established a special conservatorship for Doe. The order establishing the conservatorship placed the matter under seal due to the nature of the criminal allegations and her minority. The stated purpose of the conservatorship was to allow the special conservator to proceed with a tort claim against parties believed to be responsible for harm to Doe.

¶ 4 In accordance with A.R.S. § 12-821.01 (2003), Doe's attorneys filed the Notice with the school district on January 24, 2007, apparently requesting that its contents be considered confidential. Under the statute, the district had sixty days to evaluate the claim, after which it was deemed denied. Doe represents to us that no action was taken on the Notice.

¶ 5 On February 2, 2007, a PNI employee submitted a request to the district for a copy of the Notice. On February 5, 2007, Doe filed under seal in the conservatorship action a Motion to Quash Public Request for Notice of Claim and Request to Seal All Further Proceedings. The motion stated that the Notice was concurrently lodged under seal with the court. No copy of the Notice has been supplied to this court as part of this special action, and there is no indication in the record that the probate court considered the contents of the Notice in making its ruling.

¶ 6 PNI responded to the motion, also under seal. The district filed a response acknowledging receipt of the Notice "with the assertion by [Doe] that it was submitted in confidence," and requesting direction from the court in responding to the competing demands of PNI and Doe.

¶ 7 On April 1, 2007, the trial court granted the motion to quash with regard to the Notice. The court stated:

A Special Conservator was appointed on November 2, 2006 Under Seal for the minor child with authority to pursue appropriate legal action on her behalf. The Notice of Claim, submitted in confidence for the purpose of advancing the tort claim is not a "Public Record of the School District" as contemplated by A.R.S. § 39-121, et seq.

Furthermore, Jane Doe is a minor child and the victim of a serious criminal offense. Even if the Notice of Claim was deemed a public record, the rights and protections offered to minors generally and to crime victims specifically outweigh the interests of the public and the press in obtaining this document. Disclosure would violate the basic tenets of confidentiality extended to minor children in court proceedings and could result in irreparable harm to this minor victim of crime. The Request for Public Records of School District is quashed as it relates to these probate court proceedings.

If and when civil proceedings are commenced regarding the minor's tort claim then the assigned civil division can conduct a hearing regarding the appropriate extent of the right to access to court proceedings and documents. A limited redaction may be appropriate. This ruling is limited to the probate action and does not contemplate a blanket closure of any and all future proceedings.

PNI seeks review of this order.

¶ 8 The criminal trial of Doe's assailant began on May 21, 2007. PNI published an article detailing Doe's testimony, but withheld her name "because she is a minor and alleged sexual assault victim."

JURISDICTION

¶ 9 We have discretion to accept or deny jurisdiction in a special action. Roman Catholic Diocese v. Superior Court, 204 Ariz. 225, 227, ¶ 2, 62 P.3d 970, 972 (App.2003). "Special action jurisdiction is appropriate when there is no plain, speedy and adequate remedy by way of appeal" or "in cases involving a matter of first impression, statewide significance, or pure questions of law." Id. (quoting State ex rel. Pennartz v. Olcavage, 200 Ariz. 582, 585, ¶ 8, 30 P.3d 649, 652 (App.2001)).

¶ 10 PNI argues we should accept jurisdiction because (1) the public records law favors prompt access to public records, (2) the petition raises purely legal questions of statewide importance that are likely to arise again, (3) PNI is not a party to the underlying probate action so it cannot appeal the trial court's order, (4) Arizona courts have accepted special action jurisdiction when non-parties challenge discovery orders regarding third-party discovery, and (5) the trial court exceeded its legal authority. Doe responds that confidentiality of actions involving minors is a bedrock of juvenile law not needing further analysis, and because the Notice was not acted upon, it is now moot, stale and of no public interest. Doe also notes that the trial court allowed the extent of public disclosure to be addressed in any future civil action, which Doe states will be filed in a matter of days. Therefore, PNI can seek relief in that action.¹

¶ 11 We agree with PNI that whether a notice of claim submitted with a request for confidentiality is a public record is a matter of statewide concern that is likely to arise again. We also agree with PNI that it does not have an adequate remedy by appeal; it cannot appeal the probate court's order.

¶ 12 Although Doe argues PNI may raise the issue in a subsequent civil action, we do not read the trial court's order as qualifying its ruling regarding the Notice, or leaving the issue open for reconsideration in a later civil action. The probate court was responding to Doe's request that it seal all further proceedings relating to the tort action. The court was leaving that determination to the court that would hear the tort action and addressed only the issue before it — Doe's Notice of Claim. Even if the probate court's order could be read as leaving the issue open, there is no guarantee that the civil court would entertain what would essentially be a collateral appeal of the probate court's order. Under these circumstances, appropriate relief is by way of special action. Therefore, in the exercise of our discretion, we accept jurisdiction.

DISCUSSION

¶ 13 "Whether a document is a public record under Arizona's public records law presents a question of law, which we review de novo." Griffis v. Pinal County, 215 Ariz. 1, 3, ¶ 7, 156 P.3d 418, 420 (2007). Similarly, a trial court's denial of access to public records is an issue of law reviewed de novo. Cox Ariz. Publ'ns v. Collins, 175 Ariz. 11, 14, 852 P.2d 1194, 1198 (1993).

¶ 14 "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." A.R.S. § 39-121. The public records law goes on to require that "[a]ll officers and public bodies shall maintain all records . . . reasonably necessary or appropriate to maintain an accurate knowledge of their official activities . . . which are supported by monies from the state or any political subdivision of the state." A.R.S. § 39-121.01(B). "Arizona law defines `public records' broadly and creates a presumption requiring the disclosure of public documents." Griffis, 215 Ariz. at 4, ¶ 8, 156 P.3d at 421.

¶ 15 In Griffis, our supreme court explained the process to be followed by a court when the presumption in favor of disclosure of public records comes into conflict with asserted privacy interests.

Determining whether the public records law requires disclosure, then, involves a two-step process. When the facts of a particular case "raise a substantial question as to the threshold determination of whether the document is subject to the statute," the court must first determine whether the document is a public record. If a document falls within the scope of the public records statute, then the presumption favoring disclosure applies and, when necessary, the court can perform a balancing test to determine whether privacy, confidentiality, or the best interests of the state outweigh the policy in favor of disclosure.

Id. at 5, ¶ 13, 156 P.3d at 422 (citation, footnote and internal citation omitted). Therefore, the first issue to be addressed is whether the Notice is a public record.²

¶ 16 Citing its earlier decisions in Salt River...