Fri, May 24

Appeals Court rules Arizona open records outweighs claim of confidentiality

PHOENIX -- Arizonans are legally entitled to know what their public officials have been doing, even if it's only going with the security detail to the cleaners, the state Court of Appeals ruled Thursday.

In a decision with wide-reaching implications, the judges unanimously concluded that the requirements of Arizona law for open records outweighs any general claim of confidentiality.

The judges said public officials and the security officers who protect them are entitled to withhold certain events or details that could pose a security risk. But they said the burden is on the public official to prove that risk, not on the person soliciting the record to prove otherwise.

And the court said the fact it would be inconvenient to go through the records to figure out what is and is not subject to disclosure is insufficient to deny the entire record to the public.

The new ruling involves a dispute between Judicial Watch and the city of Phoenix over the details of the activities of Mayor Phil Gordon. But the decision, unless overturned, has statewide implications.

It also comes amid perennial requests by various media outlets to get specifics on the activities of Gov. Jan Brewer. Those, however, have been met with the governor's staff saying the public is entitled solely to a list of events which are open to the public.

But Brewer is not alone in that attitude. Governors from both parties have denied similar requests for years.

Gregory Collins, who represents Judicial Watch, said the ruling is significant.

"This case I would think stands for that fact that government needs to be transparent,' he said. "And when government isn't transparent and it doesn't tell the public what it's doing, that's what the court system is for.'

City attorneys had no immediate comment.

Judicial Watch sought the activity logs created by the police department detail assigned to protect Gordon from the time he leaves home each morning until he returns.

City officials agreed to make the mayor's calendar available. But they refused to provide detailed logs which also include unscheduled events, including personal business like shopping, having lunch and doing personal errands.

In arguments to the court, attorneys for the city argued that the information should be withheld because it could be used to undermine the mayor's safety. They also said the information was private and confidential and that it was protected by the "deliberative process' privilege which shields from scrutiny activities involved in reaching decisions.

Presiding Judge Ann Scott Timmer, writing for the court, said while Arizona's public records law favors openness, there are limits "to avoid the infliction of substantial and irreparable private or public harm.'

She said once a request for public records is made, a court must first determine if the record is public. If that is the case, Timmer, said, then a judge must determine whether issues of privacy, confidentiality or the best interests of the state outweigh the policy favoring disclosure.

But she said the burden is on the government to overcome that presumption of disclosure.

"The city's security-related and confidentiality interests do not preclude inspection of worksheets entirely if the information affecting these interests can be redacted,' Timmer wrote.

She also said that the worksheets contain more information than the calendars the city produced, even after confidential or security information was redacted.

And Timmer said that even city lawyers acknowledged that not everything in the worksheets is related to security or is confidential.

On one hand, the judge said, it might be appropriate to excise out the names of specific restaurants where the mayor was having meetings.

"But we cannot conceive how additional generic notations like the mayor 'greeted officers' or he went to the 'cleaners' impact a security-related or confidentiality concern,' Timmer wrote. "Similarly, a notation ... describes an apparently one-time personal errand that, on its face, does not predict the mayor's movements and would not pose a security threat if revealed without additional descriptive information.'

The court rejected the city's contention that going through the worksheets to redact certain non-public information would be "unduly burdensome' and that consideration outweighs the public's interest in inspecting the records. Timmer said that simple assertion is insufficient.

"As the party opposing inspection ... the city bears the burden of specifically demonstrating that redaction would be so unduly burdensome for the city that inspection is not warranted,' she wrote, something that was not done here.

Collins acknowledged there are sometimes reasons to keep certain information confidential.

He said some of that is linked to the official involved. For example, he said the president might have more reason to withhold documents.

"Here, when we're dealing with the mayor of the city of Phoenix, the things that the public shouldn't know should be the extreme exception and certainly not the rule,' Collins said.

The judges also brushed aside claims that it would be difficult or nearly impossible to determine whether an entry concerned confidential city business.

"While we accept the accuracy of this testimony, the city does not cite any evidence indicating that someone from the mayor's staff could not make this determination,' Timmer said. And she said if a specific entry might be confidential but a good-faith effort cannot confirm that, the city can redact that.

"It is in the public's best interest to permit inspection of worksheets with such redactions rather than preclude any inspection because the city cannot confirm an entry's confidential nature with certainty,' Timmer wrote.

The court also said that while the mayor may be conducting purely private business, which otherwise is not subject to disclosure, that does not automatically outweigh public interest in inspecting the records that document the activities of police officers, paid with public funds, to protect him while he engages in both public and private business.

"Public officials like the mayor do not sacrifice all privacy rights in order to take and maintain office,' Timmer wrote. "But if a government entity declines an inspection request and judicial review is sought, that entity is not excused from specifically demonstrating how release of particular information would adversely affect an official's privacy interest.'