West Valley View v. Maricopa County

• Decision Date: 16 August 2007
• Docket Number: No. 1 CA-CV 06-0549.,1 CA-CV 06-0549.
• Citation: 216 Ariz. 225,165 P.3d 203
• Parties: WEST VALLEY VIEW, INC., an Arizona corporation, Plaintiff/Appellee/Cross-Appellant, v. MARICOPA COUNTY SHERIFF'S OFFICE, a political subdivision and public body, Defendant/Appellant/Cross-Appellee.
• Court: Arizona Court of Appeals

165 P.3d 203

216 Ariz. 225

WEST VALLEY VIEW, INC., an Arizona corporation, Plaintiff/Appellee/Cross-Appellant, v. MARICOPA COUNTY SHERIFF'S OFFICE, a political subdivision and public body, Defendant/Appellant/Cross-Appellee.

No. 1 CA-CV 06-0549.

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

August 16, 2007.

Perkins Coie Brown & Bain, P.A. by Daniel C. Barr, Colin P. Ahler, Phoenix, for Plaintiff/Appellee/Cross-Appellant.

Wilenchik & Bartness, P.C. By Dennis I. Wilenchik, Phoenix, for Defendant/Appellant/Cross-Appellee.

JOHNSEN, Judge.

¶ 1 The Maricopa County Sheriff's Office routinely distributes press releases by e-mail to many news media in Arizona and elsewhere. Until recently, among those receiving the Sheriff's Office e-mails was a suburban Phoenix weekly newspaper, the West Valley View. The Sheriff's Office removed the West Valley View from its e-mail list because, it said, the paper did not appear to be "using" the news releases in a manner satisfactory to the Sheriff. Objecting to what it felt was an arbitrary and vindictive action, the newspaper submitted a public records request pursuant to Arizona Revised Statutes ("A.R.S.") section 39-121.01 (Supp.2005) seeking copies of all future press releases issued by the Sheriff. When the Sheriff's Office did not respond, the newspaper filed a special action petition in the superior court. We affirm the superior court's order granting relief to the newspaper. While the public records law does not require the Sheriff's Office to put the West Valley View back on its e-mail distribution list, we affirm the superior court's conclusion that the statute does require the Sheriff to provide the newspaper with hard-copy printouts of its press releases the day they are e-mailed to other media.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 The West Valley View, published by West Valley View, Inc., is a semi-weekly newspaper serving Buckeye, Avondale, Good-year, Litchfield Park and Tolleson. The newspaper covers crime and law enforcement agencies, including the Sheriff's Office. As noted, the Sheriff's Office routinely distributes press releases to media members inside and outside Arizona via e-mail. At one time, the West Valley View was on the Sheriff's Office e-mail distribution list; however, when the Sheriff's Office sent out a press release in Fall 2005 concerning the discovery of the remains of two murder victims at a Buckeye construction project, the West Valley View was not on the distribution list. During a telephone call a few days later, the Sheriff's Office public information officer, Lt. Paul Chagolla, informed the West Valley View managing editor that the Sheriff's Office would no longer e-mail press releases to the newspaper. Chagolla explained, "We like to see that our work is fruitful and we've sent [the West Valley View] multiple story ideas, multiple releases and quite frankly don't see them covered." Asked to reconsider the decision, Chagolla responded, "I'm not going to put you on the [e-mail] list because it's my prerogative to do so."

¶ 3 On November 14, 2005, counsel for West Valley View wrote the Sheriff's Office stating, "[p]lease consider this letter an ongoing request under the Arizona Public Records Law, A.R.S. § 39-121 et seq[.] for the [Sheriff's Office] to provide the West Valley View all of its press releases at the same time that it provides that information to other news media." Receiving no response to his November 14 letter, counsel for the newspaper wrote on again on December 22, 2005, to the in-house attorney for the Sheriff's Office asking for a response to its "express ongoing request under the Arizona Public Records Law." The Sheriff's Office did not respond to that letter, either.¹ The newspaper then filed a special action petition in the superior court.

¶ 4 After briefing, the superior court heard oral argument on June 28, 2006. Two days later, the court accepted special action jurisdiction and granted relief. The court noted that the newspaper conceded that the Sheriff's Office did not violate A.R.S. §§ 39-121 to -125 by removing it from its e-mail distribution list. Nevertheless, the court held, "A request for all future press releases is clear, unambiguous, and without undue burden on [the Sheriff's Office]. Moreover, such a prospective request is the only feasible way for a media outlet with time-sensitive deadlines to otherwise obtain press releases in a timely manner." (Emphasis in original.)²

¶ 5 The court ordered that when the Sheriff's Office issues a press release it must "contemporaneously" make the release available to the West Valley View, either by making it available for pickup or by mailing it "on the same date that the press release is issued." The court, however, declined to grant West Valley View's request for attorney's fees pursuant to A.R.S. § 39-121.02(B) (2001).

¶ 6 The Sheriff's Office appeals the superior court's order on the merits and West Valley View cross-appeals from the denial of its request for attorney's fees.

DISCUSSION

I. THE APPEAL

A. The Trial Court Did Not Abuse Its Discretion by Ordering the Sheriff's Office to Comply with the Public Records Request.

¶ 7 After the superior court has accepted jurisdiction and determined the merits of a special action petition, "we review whether the court abused its discretion by its grant or denial of relief." Ottaway v. Smith, 210 Ariz. 490, 492, ¶ 5, 113 P.3d 1247, 1249 (App.2005).³ We review de novo whether the denial of access to public records is wrongful. Bolm v. Custodian of Records, 193 Ariz. 35, 38, ¶ 7, 969 P.2d 200, 203 (App.1998). At the same time, we defer to any findings of fact by the superior court. Phoenix Newspapers, Inc. v. Keegan, 201 Ariz. 344, 347, ¶ 11, 35 P.3d 105, 108 (App.2001).⁴

¶ 8 The Sheriff's Office does not disagree that the press releases it issues are "public records" for purposes of A.R.S. §§ 39-121 to -125. See Griffis v. Pinal County, 215 Ariz. 1, 4, ¶ 8, 156 P.3d 418, 421 (2007) ("Arizona law defines `public records' broadly and creates a presumption requiring the disclosure of public documents."); In re Corwin, Solomon & Tanenbaum v. New York State Div. of Lottery, 239 A.D.2d 763, 657 N.Y.S.2d 803, 804-05 (N.Y.App.Div.1997) (previously disseminated press releases relating to lottery winners were subject to disclosure). Nor does the Sheriff's Office contend the press releases contain private information, the disclosure of which would require application of "a balancing test to determine whether privacy, confidentiality, or the best interests of the state outweigh the policy in favor of disclosure." Griffis, 215 Ariz. at 5, ¶ 13, 156 P.3d at 422. Indeed, the very nature of a "press release" is that it be publicly disclosed and disseminated.

¶ 9 Nevertheless, the Sheriff's Office argues that the public record laws provide no basis for a continuing order to a public body to provide copies of documents to be issued in the future. During oral argument before this court, counsel for the Sheriff's Office conceded that the law would require the Sheriff to promptly furnish the West Valley View with a copy of any specific press release if the newspaper requested it after the press release already had issued. But the Sheriff's Office contends the public records laws provide no authority for an "ongoing" request for copies such as the request filed by the West Valley View. Thus, in the view of the Sheriff's Office, it may require a newspaper that has made known its desire to have copies of each press release issued by the Sheriff to somehow discover on its own that a press release has been issued and then make a separate formal request to the Sheriff for a copy of each such release. We disagree.

¶ 10 The newspaper's request was made pursuant to A.R.S. § 39-121.01(D)(1), which states, "Any person may request to examine or be furnished copies, printouts or photographs of any public record during regular office hours or may request that the custodian mail a copy of any public record not otherwise available on the public body's web site to the requesting person." (Emphasis added.)⁵ The newspaper requested that it be "furnished copies" of news releases issued by the Sheriff's Office. In view of the presumption requiring disclosure that guides our application of Arizona's public records laws, Griffis, 215 Ariz. at 4, ¶ 8, 156 P.3d at 421, we do not construe section 39-121.01(D)(1) to require the submission of separate seriatim requests for copies of each successive record when what the requester wants is every record within a clearly articulated and defined category of records that a public agency creates over time.⁶

¶ 11 Although courts are generally hesitant to order a defendant to obey a law in the future, we observe that courts in other jurisdictions have granted prospective relief under state public records laws. For example, in State ex rel. Consumer News Services, Inc. v. Worthington City Board of Education, 97 Ohio St.3d 58, 776 N.E.2d 82 (2002), the court was presented with a request that an agency "produce public records in the future without delay." Id. at 88, ¶ 28 (emphasis omitted). The court noted that mandamus usually does not issue "to compel the general observance of laws in the future," id. at ¶ 33, but granted relief in the face of the agency's proven repeated practice of untimely production of records under the Ohio public records statute, id. at 91, ¶¶ 50-51.

¶ 12 In Howard v. Sumter Free Press, Inc., 272 Ga. 521, 531 S.E.2d 698 (2000), the Georgia Supreme Court affirmed the use of mandamus to enforce a newspaper's request for public records. A county sheriff had denied the newspaper access to all public records created and maintained by his office, and the newspaper sued for mandamus to compel the sheriff to comply with the state's Open Records Act. Id. at 698 (citing Ga.Code Ann. § 50-18-70 et seq.). The lower court granted mandamus after it found the sheriff had withheld information...