Phoenix Newspapers, Inc. v. Keegan

• Citation: 35 P.3d 105,201 Ariz. 344
• Decision Date: 27 November 2001
• Docket Number: No. 1 CA-CV 00-0284.,1 CA-CV 00-0284.
• Parties: PHOENIX NEWSPAPERS, INC., an Arizona corporation, Plaintiff-Appellee, Cross Appellant, v. Lisa Graham KEEGAN, Superintendent of Public Instruction of the State of Arizona; The State of Arizona Board of Education, a public body; and The State of Arizona Department of Education, a public body, Defendants-Appellants, Cross Appellees.
• Court: Court of Appeals of Arizona

35 P.3d 105

201 Ariz. 344

PHOENIX NEWSPAPERS, INC., an Arizona corporation, Plaintiff-Appellee, Cross Appellant, v. Lisa Graham KEEGAN, Superintendent of Public Instruction of the State of Arizona; The State of Arizona Board of Education, a public body; and The State of Arizona Department of Education, a public body, Defendants-Appellants, Cross Appellees.

No. -0284.

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

November 27, 2001.

Steptoe & Johnson LLP, by David J. Bodney, Peter B. Swann, Peter S. Kozinets, Phoenix, Attorneys for Plaintiff-Appellee, Cross-Appellant.

Janet Napolitano, Attorney General, by Lynne C. Adams, Assistant Attorney General, Elliot Talenfeld, Assistant Attorney General, Phoenix, Attorneys for Appellants, Cross-Appellees.

OPINION

LANKFORD, Judge.

¶ 1 This case requires us to review a superior court's decision that some of the questions in a statewide academic test are open to public inspection under Arizona's public records law. The superior court, exercising special action jurisdiction, granted partial relief to the plaintiff, a newspaper publisher. The court ordered that the defendants, a State officer and State agencies, allow the newspaper to inspect and copy most questions from the first administration of the test known as "AIMS" (Arizona Instrument to Measure Standards).

¶ 2 Dissatisfied with the superior court's decision, both sides appealed. The State defendants contend that they should not be required to disclose any test questions. The newspaper's cross-appeal argues that all questions should be open to public inspection. The newspaper also challenges the superior court's decision not to award attorneys' fees incurred by the newspaper in pursuing disclosure.

THE TEST

¶ 3 The document in dispute is the first version, known as "Form A," of AIMS. AIMS is the result of State legislation requiring the State Board of Education to "[d]evelop and adopt competency tests for the graduation of pupils from high school in at least the areas of reading, writing and mathematics and shall establish passing scores for each such test." Ariz.Rev.Stat. ("A.R.S.") § 15-701.01(A)(3) (Supp.2000). Form A was administered to about 50,000 Arizona high school sophomores in preparation for additional testing. Subsequent tests, consisting of six total versions, ultimately would be administered to all Arizona high school students from their sophomore to senior years. A passing AIMS score will be needed to graduate from high school. See A.R.S. § 15-701.01(A)(3) (Supp.2000).¹

¶ 4 Form A was administered in the spring of 1999. In November, the State released the results. About 92 percent of the students failed one or more of the three basic parts of the examination: mathematics, writing and reading. The failure rate on the mathematics portion alone was about 88 percent. This administration of AIMS was not used to grant or withhold high school diplomas, but the same form could be used later for this purpose.

¶ 5 Sample questions representative of examination items were released in advance of the test administration. These included answering multiple choice items, writing essays, narratives, letters and short answers, interpreting data and graphs, diagraming, and solving of equations.²

THE REQUEST FOR INSPECTION

¶ 6 Immediately following the State's release of the results, the newspaper asked to inspect and copy Form A. Public documents are generally subject to inspection and copying upon request. A.R.S. § 39-121.01(D)(1) (Supp.2000). The State declined to permit copying, but offered limited viewing. The State's offer allowed the newspaper to view the document for a limited time, but note-taking or copying was forbidden. The State also required a non-disclosure agreement.³ The newspaper was permitted additional viewing time if it appeared justified to the State.

THE SPECIAL ACTION

¶ 7 The disclosure battle was joined when the newspaper filed a special action seeking a superior court order that the State permit inspection and copying of Form A. Not every conceivable issue was disputed in the special action, however. For example, the State conceded that Form A is a public record subject to Arizona's public records laws. For its part, the newspaper did not seek to expand its quest for disclosure to include later forms of the test, including at least one prepared before the superior court decided this matter. Thus, this case involves what the parties agree are public records, and it involves only the disclosure of Form A and not other versions of AIMS.

¶ 8 The dispute in the superior court focused upon this principal question: Must the public's right to inspect this public record yield to some greater State interest? The State defendants vigorously argued that disclosure of Form A would render worthless their efforts to devise the several forms of AIMS. The State argued that it would require millions of dollars to replicate the testing regime. The newspaper responded that disclosure of Form A would not prevent valid test results even if Form A were used again. Both sides relied on expert opinions.⁴

¶ 9 The superior court found a middle ground between the parties' positions. It determined that Form A contained two types of questions: "anchor" questions that would be repeated in future forms and all other questions. The anchor questions need not be disclosed, the court ruled. All other questions must be made available for public inspection. More than one of every five test items is an anchor.

¶ 10 Because the superior court stayed its order pending appeal, the State was not obliged to immediately release the non-anchor questions. Nevertheless, the State released many of the Form A questions, publishing them on the Arizona Department of Education's website.⁵ The State does not suggest that its release satisfied the superior court order by revealing all of the non-anchor questions that the court directed be open to inspection. The release also does not include the anchor questions that the newspaper still wishes to inspect. The public release of these questions therefore did not resolve this dispute.

STANDARD OF REVIEW

¶ 11 Our review does not simply re-decide all questions already resolved by the superior court. We defer to any findings of fact the court made, such as the difference between anchor questions and other questions. See Scottsdale Unified Sch. Dist. No. 48 v. KPNX Broad., 191 Ariz. 297, 302, 955 P.2d 534, 539 (1998)

(applying "clearly erroneous" standard of review). However, the matter of the public's right of inspection is a question of law that we decide de novo. Id. at 302, 955 P.2d at 539.

¶ 12 The parties present many questions to us, but the central question is this: Did the superior court properly determine that the balance of public interest favored disclosure of all but the anchor test questions?⁶

¶ 13 We affirm the superior court in all respects. We agree that, under the facts, the law requires disclosure of some but not all of the document. We also see no abuse of discretion in the court's denial of attorneys' fees to the newspaper.

PROCEDURE

¶ 14 We first address a procedural question. The State defendants attack the superior court's decision as "premature." The court upheld the public's right of inspection after considering whether some greater State interest in non-disclosure outweighed the presumptive right of inspection. See Carlson v. Pima County, 141 Ariz. 487, 491, 687 P.2d 1242, 1246 (1984)

. The parties agreed that the court should perform this balancing task, but apparently the State did not anticipate an outcome in which some but not all of the Form A questions would be disclosed.

¶ 15 The State complains that the court needed more evidence and therefore that its decision was "premature." The State's argument is no more than an admission that it did not anticipate the outcome and an assertion that it would have adopted different tactics had it known.

¶ 16 The superior court acted only after both sides had full opportunity to produce evidence. Some of the evidence distinguished anchor questions from other test questions. One of the possible outcomes was to require partial disclosure. In fact, the State recognizes that precedent supports redaction of documents to allow disclosure when possible. See KPNX-TV v. Super. Ct., 183 Ariz. 589, 594, 905 P.2d 598, 603 (App. 1995)

. Thus, the court's order was fully consistent with the evidence presented and well within its authority. The parties were not entitled to new evidentiary hearings merely because they did not foresee this particular outcome.⁷

BALANCING OF INTERESTS

¶ 17 We now turn to the pivotal issue: Did the court correctly balance the competing interests? The general statutory right of inspection of public records is unqualified. A.R.S. § 39-121.01(D). However, consistent with certain statutory exceptions from disclosure, a common law limitation on disclosure exists. Carlson, 141 Ariz. at 490, 687 P.2d at 1245. Although the statute creates a presumption of disclosure, id. at 491, 687 P.2d at 1246, this presumption can be outweighed by other public interests.

¶ 18 A public official can withhold inspection by showing that non-disclosure serves "confidentiality, privacy or the best interests of the state...." Id. This "best interests of the state" standard is not confined to the narrow interest of either the official who holds the records or the agency he or she serves. It includes the overall interests of the government and the people. Of course, the government's administrative interests are not excluded from the weighing process: The public interest includes consideration of how disclosure would adversely affect the agency's mission. But it also may include other ways in which the public would be affected by disclosure or non-disclosure.

¶ 19 To justify withholding public documents, the State's interest in non-disclosure must "outweigh the general policy of open access." Id. The official who...