Phoenix Newspapers, Inc. v. Molera

• Decision Date: 28 June 2001
• Docket Number: No. 1 CA-CV 00-0559.,1 CA-CV 00-0559.
• Citation: 27 P.3d 814,200 Ariz. 457
• Parties: PHOENIX NEWSPAPERS, INC., an Arizona corporation, and Nicole Carroll, Petitioners-Appellants, v. Jaime A. MOLERA and State of Arizona Department of Public Instruction, Respondents-Appellees.
• Court: Arizona Court of Appeals

27 P.3d 814

200 Ariz. 457

PHOENIX NEWSPAPERS, INC., an Arizona corporation, and Nicole Carroll, Petitioners-Appellants, v. Jaime A. MOLERA¹ and State of Arizona Department of Public Instruction, Respondents-Appellees.

No. -0559.

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

June 28, 2001.

As Amended July 2, 2001.

Morrison & Hecker L.L.P., by James F. Henderson, Carrie J. Brennan, Phoenix, Attorneys for Petitioners-Appellants.

Janet Napolitano, The Attorney General, by Lynne C. Adams, Assistant Attorney General, Elliot Talenfeld, Assistant Attorney General, Gretchen Schneidau, Assistant Attorney

General, Phoenix, Attorneys for Respondents-Appellees.

OPINION

PATTERSON, Judge.

¶ 1 Phoenix Newspapers, Inc. ("PNI"), publisher of The Arizona Republic newspaper, brings this appeal from a denial of its request for special action relief in the superior court. The appeal challenges whether the state board of education timely "publish[ed] and distribute[d]" its reports containing student achievement test scores pursuant to Arizona Revised Statutes Annotated ("A.R.S.") section 15-743(A) (Supp.2000) and whether PNI was entitled to inspect and copy the reports and the underlying test results pursuant to Arizona's laws requiring access to public records before the board's press conference to release the information to the public.

FACTS AND PROCEDURAL HISTORY

¶ 2 The Stanford 9 Achievement Test is a national achievement test covering reading, writing, and mathematics administered yearly between April 1 and May 1 to students in Arizona schools in grades three through twelve. See A.R.S. § 15-741 (Supp.2000). Pursuant to A.R.S. section 15-743(A), the state board of education must provide annual reports "for every school and district and the state as a whole," containing specified information about the achievement test scores. The board must submit the reports to "school districts, the legislature and the county school superintendents" and "shall make them available to the public." Under the deadline provided in the statute, "[t]he state board shall publish and distribute the reports by July 1...."

¶ 3 Pursuant to subsection (C) of the same statute, the board must also provide copies of the test results for each school district to that school district. As further provided in that subsection, "[n]o results may be released to the public until ten days after the reports are provided to each school district."

¶ 4 In the year 2000, the July 1st deadline by which the annual reports were to be released fell on a Saturday. The department of education, which is administered by the board and the superintendent of public instruction, see A.R.S. section 15-231, planned to release the reports on the next business day, Monday, July 3, 2000, at a press conference to be held at 11:00 a.m.

¶ 5 Beginning on June 27, 2000, several employees of The Arizona Republic made written or oral requests to the department to receive the reports and the test results before the release time chosen by the department. They asked to receive the information alternatively as early as June 28th, at least sometime before July 1st, or at the very least, by 8:30 a.m. on July 3rd, to meet a newspaper deadline, instead of having to wait for the 11:00 a.m. press conference on July 3rd. All of these requests were refused.

¶ 6 On June 29, 2000, PNI and newspaper employee Nicole Carroll (hereinafter collectively "PNI") filed a special action in the Superior Court of Arizona in and for Maricopa County against the department and the superintendent of public instruction claiming that it had been wrongfully denied access to the requested records and urging that the department be required to release them for inspection and copying prior to the release date chosen by the department. See A.R.S. § 39-121.02(A). PNI also charged that the custodian of the records had acted in bad faith or in an arbitrary or capricious manner in denying access to the records and that PNI was therefore entitled to its costs and attorney's fees pursuant to A.R.S. section 39-121.02(B).

¶ 7 The trial court heard the matter that same day and denied the relief requested by PNI. The trial court found that the department was entitled to deny access to the requested information until July 1st, the date certain set forth in A.R.S. section 15-743(A) for release of the reports. Because July 1st fell on a Saturday, the court also found that the board was entitled to wait to release the reports until the next business day, July 3, 2000. Further, the court found that the board was entitled to release the reports in an orderly manner at the time it chose on that date instead of being required to provide access earlier in the day to PNI. ¶ 8 Employees of The Arizona Republic nevertheless turned up at the department at 8:30 a.m. requesting early release, which was again refused. The department released the reports at its 11:00 a.m. press conference on Monday, July 3rd, as it had planned.

¶ 9 On July 7, 2000, PNI moved for reconsideration of the trial court's ruling. The trial court determined that the request to release these particular records was now moot since the reports had already been released by that time. It chose to rehear arguments on some of the underlying legal issues concerning the date and time the board should have released the reports, but ultimately denied the motion for reconsideration.

¶ 10 PNI appeals to this court challenging the trial court's rulings in interpreting A.R.S. section 15-743 and in determining how that statute is to be reconciled with Arizona's laws allowing access to public information. This court reviews issues of statutory interpretation de novo. Hawkins v. Dep't of Econ. Sec., 183 Ariz. 100, 103, 900 P.2d 1236, 1239 (App.1995). Likewise, we review issues of "denial of access" to public records de novo. Scottsdale Unified Sch. Dist. No. 48 v. KPNX Broadcasting Co., 191 Ariz. 297, 302, 955 P.2d 534, 539 (1998). Initially, however, we address appellees' question whether PNI's appeal is moot.

DISCUSSION

Mootness

¶ 11 The appellees argue that because the public records in question were released to the public almost a year ago, the appeal no longer presents a controversy and the issues PNI raises should not be considered by this court. We disagree. Even appellees acknowledge that the issue of statutory attorneys' fees pursuant to A.R.S. section 39-121.02 is not moot. One of the steps in deciding whether the statutory fees should be allowed is to determine whether a person was wrongfully denied access to or the right to copy a public record. PNI'S argument that it was wrongfully denied access at the time it requested it, therefore, needs to be decided in order to determine whether it might be entitled to the statutory award of attorney's fees. Accordingly, the issues in this appeal are not moot.

¶ 12 In addition, the mootness doctrine is not mandated by the Arizona Constitution, but is solely a discretionary policy of judicial restraint. Fisher v. Maricopa County Stadium Dist., 185 Ariz. 116, 119, 912 P.2d 1345, 1348 (App.1995). Arizona courts may consider an appeal that has become moot if there is either an issue of great public importance or an issue capable of repetition yet evading review. Fraternal Order of Police v. Phoenix Employee Relations Bd., 133 Ariz. 126, 127, 650 P.2d 428, 429 (1982); Exodyne Props., Inc. v. City of Phoenix, 165 Ariz. 373, 376, 798 P.2d 1382, 1385 (App.1990).

¶ 13 The present case does not fit within the exception to the mootness rule for an issue of great public importance. Whether PNI is entitled to receive the reports or test results a few days or hours before they are released to the public as a whole may be of importance to PNI, but to the public is a matter of trivial importance.

¶ 14 This case does fall within the other exception to the mootness doctrine, however, because it is capable of repetition yet it evades review. Presumably, PNI may try year after year to obtain the reports or test results shortly before they are released to the public as a whole. Because of the short time period between when this information comes into existence within the department and when it is released to the public as a whole pursuant to A.R.S section 15-743(A), and because the superior court might continue to rule against PNI in any special action brought in the future, PNI might never be able to have appellate court review of the issue. Therefore, we address the merits of the appeal.

Public Access

¶ 15 PNI argues that in denying it access to the records on each of the dates and times the newspaper employees requested them, the appellees were violating Arizona's public records laws. Those laws require that "[p]ublic records and other matters ... shall be open to inspection by any person at all times during office hours." A.R.S. § 39-121 (Supp.2000).

¶ 16 Appellees do not dispute that the annual reports and the test results are "public records" or at least "other matters" within the meaning of A.R.S. section 39-121. There are, however, well-recognized statutory exceptions to this public right of inspection. KPNX, 191 Ariz. at 300, 955 P.2d at 537. Moreover, the public right of inspection may also be curtailed in the interest of "confidentiality, privacy or the best interests of the state." Carlson v. Pima County, 141 Ariz. 487, 491, 687 P.2d 1242, 1246 (1984). If these interests outweigh the public's right of inspection, the state can properly refuse inspection, but the state bears the burden of proof in the weighing process because of a clear policy favoring disclosure. Id. at 490-91, 687 P.2d at 1245-46.

¶ 17 In this case, no statute exempts the requested documents from public inspection. The question presented, though, is whether appellees had statutory authority pursuant to A.R.S. section 15-743(A) to delay access to the records for the time period it did in this case, or, conversely, a statutory duty to produce the...