Star Pub. Co. v. Pima County Attorney's Office
| Decision Date | 16 August 1994 |
| Docket Number | No. 2,CA-CV,2 |
| Citation | 891 P.2d 899,181 Ariz. 432 |
| Parties | , 22 Media L. Rep. 2381 STAR PUBLISHING CO., an Arizona corporation; and Joseph Burchell, an individual, Petitioners/Appellees/Cross-Appellants, v. PIMA COUNTY ATTORNEY'S OFFICE, a public body; Stephen D. Neely, in his capacity as County Attorney of Pima County, and Pima County, a political subdivision of the State of Arizona, Respondents/Appellants/Cross-Appellees. 94-0115. |
| Court | Arizona Court of Appeals |
In connection with allegations concerning improprieties in the operation of the Pima County Assessor's Office, the Pima County Board of Supervisors subpoenaed the computer backup tapes of that office containing all documents for 1993 including E-mail communications of employees. When plaintiffs Star Publishing Company and its reporter Joe Burchell requested these tapes from the Board, they were told that the tapes had been given to the Pima County Attorney. Plaintiffs then made a formal request for the tapes to the county attorney and, upon its denial, brought a special action in superior court under A.R.S. § 39-121.02. That court ordered production of the tapes. The county attorney appeals. The newspaper cross-appeals from the denial of its attorneys' fees. We affirm in part and reverse in part.
The argument of the county attorney on appeal is that it ought not be required to produce the tapes because some of the material there recorded might not be a public record, might be protected by a deliberative process privilege, might be immune from disclosure in order to protect public employee privacy rights, or might impede a pending criminal investigation. While these concerns might on occasion permit secrecy, no showing has been made on this record why they should preclude revelation. All that is offered is speculation. No one has examined the actual records in this case to demonstrate why any particular individual record ought not be revealed for one of these reasons. If we were to accede to the county attorney's argument, we would effectively repeal the public records statute. Because it is always possible to argue that public records contain nondiscoverable matter, argument alone would always allow nonrevelation. Our supreme court, however, has made it clear that public records are presumed open to the public for inspection unless the public official can demonstrate a factual basis why a particular record ought not be disclosed to further an important public or private interest. Cox Arizona Publications, Inc. v. Collins, 175 Ariz. 11, 852 P.2d 1194 (1993); Mitchell v. Superior Court, 142 Ariz. 332, 690 P.2d 51 (1984); Carlson v. Pima County, 141 Ariz. 487, 687 P.2d 1242 (1984). As we said in Star Publishing Company v. Parks, 178 Ariz. 604, 605, 875 P.2d 837, 838 (App.1993), "If disclosure is to be avoided, the public entity must point to specific risks with respect to a specific disclosure; it is insufficient to hypothesize cases where secrecy might prevail and then contend that the hypothetical controls all cases." That is all that the county attorney has attempted here.
Because the record is devoid of substantive content, we cannot address the specific arguments the county attorney makes. It may be that particular documents contained on the computer tapes are not public records within the meaning of Salt River Pima-Maricopa Indian Community v. Rogers, 168 Ariz. 531, 815 P.2d 900 (1991). But since no records have been produced, it is impossible to say. Were Arizona to adopt a deliberative process privilege akin to that recognized in Rogers v. Superior Court, 19 Cal.App. 4th 469, 23 Cal.Rptr.2d 412 (1993), it might apply to some of the documents. But without knowing what the documents reveal, we cannot assess whether to adopt any such privilege or what its scope ought to be. While we doubt that public employees have any legitimate expectation of privacy in personal documents that they have chosen to lodge in public computer files, we are unable to even assess the nature of any claim they might have, given the paucity of this...
To continue reading
Request your trial
-
ARIZONA IRC v. Fields
...to Exemption 5 of FOIA, and Arizona courts have not acknowledged a common law privilege. See Star Pub'g Co. v. Pima County Attorney's Office, 181 Ariz. 432, 434, 891 P.2d 899, 901 (App.1994) (noting Arizona courts have not passed on viability of deliberative process privilege). We need not ......
-
Hodai v. City of Tucson
...he argues the agent's testimony did not outweigh the presumption favoring disclosure, citing Star Publishing Co. v. Pima County Attorney's Office, 181 Ariz. 432, 434, 891 P.2d 899, 901 (App.1994). But in Star Publishing, the county attorney had not reviewed the documents in question and ref......
-
Bolm v. Custodian of Records of Tucson Police Dept.
...and will reverse a fee award only for abuse of discretion. Cox Arizona Publications; KPNX-TV; Star Publishing Co. v. Pima County Attorney's Office, 181 Ariz. 432, 891 P.2d 899 (App.1994). ¶8 Citing numerous Arizona cases, 2 the City asserts that "criminal defendants and civil litigants are ......
-
Griffis v. Pinal Cnty.
...either a public record or other matter. Id.¶ 22 Several years after Salt River, this court decided Star Publishing Co. v. Pima County Attorney's Office, 181 Ariz. 432, 891 P.2d 899 (App.1994). There, a newspaper sought computer backup tapes of the Pima County assessor's office, including e-......
-
§ 4.8 OTHER STATUTES
...v. Arizona Dep't of Health Servs., 183 Ariz. 258, 902 P.2d 1362 (App. 1995) 4-4 Star Publishing Co. v. Pima County Attorney's Office, 181 Ariz. 432, 891 P.2d 899 (App. 1994)....... 4-21 State ex rel. Corbin v. Challenge, Inc., 151 Ariz. 20, 725 P.2d 727 (App. 1986)................................
-
§ 6.11.2.1 Definite and Certain Contract Terms
...performance; its “material deviation from the bid parameters” meant that there was simply no contract to be enforced. Id. at 432, 891 P.2d at 899. If there is a right of first refusal for real property with definite and certain terms, and if it is properly recorded, that right of first refu......
-
§ 6.11.2.1 Definite and Certain Contract Terms
...performance; its “material deviation from the bid parameters” meant that there was simply no contract to be enforced. Id. at 432, 891 P.2d at 899. If there is a right of first refusal for real property with definite and certain terms, and if it is properly recorded, that right of first refu......
-
§ 4.7 PUBLIC RECORDS AND OPEN MEETINGS LITIGATION
...that documents can be kept secret only by a specific showing of a specific harm." Star Publ'g Co. v. Pima County Attorney's Office, 181 Ariz. 432, 435, 891 P.2d 899, 902 (App. 1994). In another decision, a trial court ruling awarding fees was reversed where the appellate court found that th......