The Maricopa County Sheriff’s Office (MCSO) and Sheriff Joe Arpaio have lost three public records cases in the Arizona Court of Appeals, including one where they were ordered to pay over $25,000 in attorney fees.
The first case arose when MCSO Lt. Paul Chagolla removed the West Valley View (WVV) from the list of media agencies that received routine MCSO e-mail press releases. Chagolla explained why he did so: “We like to see that our work is fruitful and we’ve sent [WVV] multiple story ideas, multiple releases and quite frankly don’t see them covered.”
When WVV asked him to reconsider his decision, Chagolla said, “I’m not going to put you on the list because it is my prerogative to do so.”
WVV discovered it had been removed from the e-mail list when it did not receive an MCSO press release that went out in late 2005 concerning the discovery of two murder victims at a construction site in a town covered by the suburban Phoenix newspaper.
WVV’s response to Chagolla’s rebuff was to file a public records request for all future press releases under Arizona’s public records law, A.R.S. § 39-121, et seq.
After being stonewalled by the MCSO for several months, WVV filed a special action petition in superior court. The court held that the MCSO had to make its press releases available to WVV at the same time it made them available to other media agencies.
However, the court denied WVV’s request for attorney fees, finding MCSO’s actions had not been arbitrary, capricious or in bad faith as required by the statute authorizing attorney fees, A.R.S. § 39-121.02(B). MCSO appealed and WVV cross-appealed.
On August 16, 2007, the Court of Appeals affirmed the superior court’s ruling that the MCSO had to provide WVV with press releases. The appellate court rejected the MCSO’s arguments that public records requests could not be made for future documents, and that production on the same day that press releases were provided to other media agencies was unreasonably rapid. The Court of Appeals held that the MCSO’s actions were arbitrary, capricious or in bad faith; the case was returned to the superior court for determination of whether attorney’s fees should be awarded. See: West Valley View v. Maricopa County Sheriff’s Office, 216 Ariz. 225 (Ariz. Ct. App. 2007), review denied.
In a similar case decided on February 5, 2008, a unanimous panel of the Court of Appeals held that the MCSO had violated the public records law when it subjected nine records requests made by the Phoenix New Times to arbitrary delays, often exceeding 100 days, simply because it didn’t like what the New Times had published. To say that Sheriff Arpaio and the New Times have had a contentious relationship would be a vast understatement. [See: PLN, Aug. 2008, p.12].
Following the excessive delays, the New Times filed suit under A.R.S. § 39-121 seeking to compel the MCSO to produce the requested records. Before the matter came before the court, the MCSO produced the records. The New Times then sought attorney’s fees, which the trial court denied on the basis that there were no deadlines for production of documents in the public records law. The court also awarded costs to the MCSO, and the New Times appealed.
The Court of Appeals held that in order to prevail, the New Times had to prove that the requested records were public documents and they were denied access to the records in bad faith or in an arbitrary or capricious manner. The Court found that eight of the New Times’ nine requests involved public documents, and that although no time period was specified in the public records statute, the law requires public records to be promptly produced and requests are deemed denied if the production is not prompt.
The appellate court noted that states with time limitations in their public records statutes specify three to ten days. It thus had no problem deciding that delays of months, regardless of the many reasons for the delays offered by the MCSO (most of which were due to employee inattentiveness), did not justify the failure to promptly produce the requested records.
The Court of Appeals observed that the trial court had found the MCSO did not wrongfully deny the documents, and thus didn’t reach the question of whether the denial of the records was arbitrary, capricious or done in bad faith. The appellate court vacated the denial of attorney fees and the award of costs to MCSO, and returned the case to the superior court to determine “whether MCSO’s wrongful denial of public records was in bad faith or was arbitrary or capricious, and whether, under the circumstances, the New Times is entitled to an award of its attorneys’ fees.” See: Phoenix New Times, L.L.C. v. Arpaio, 217 Ariz. 533 (Ariz. Ct. App. 2008), review denied.
In a third case, on February 11, 2008, a superior court in Pima County, Arizona awarded $25,241 in attorney’s fees to the Tucson Citizen in a case involving public records requested from the MCSO in July 2007, but not received until five months later. The records were related to a dispute between Pima County officials and Maricopa County officials over how $30 million in seized illegal assets should be divided.
Pima County was willing to produce the requested documents, but Dennis Wilenchik, a private attorney frequently employed by Arpaio, used his influence to block the release of the records until a court ruled they must be disclosed. The Citizen then moved for attorney fees. According to Phoenix attorney David Bodney, who represented the newspaper, “The message is that members of the public should not be obliged to litigate against Sheriff Arpaio whenever they hope to inspect public records – in this case, records that the Pima County Attorney wanted to disclose – but could not because of Sheriff Arpaio’s objections.”
MCSO appealed the attorney fee award, and lost yet again in the Court of Appeals. Arpaio argued that “A.R.S. § 39-121(B) does not permit the trial court to require him to pay Citizen’s attorney fees,” because he was not the custodian of the records and the statute does not specify who is liable for payment of the fees. However, the appellate court found the statute “does not prohibit a trial court from requiring a party other than the custodian of the requested records to pay attorney fees,” and affirmed the lower court’s order. See: Arpaio v. Citizen Publ’g Co., 2008 Ariz. App. LEXIS 163 (Ariz. Ct. App., Dec. 18, 2008), review denied.
Given this string of losses in the Court of Appeals, perhaps MCSO and Sheriff Arpaio should consider simply complying with the state’s public records law. Ironically, the MCSO has filed suit against Maricopa County to prevent the use of a new form that restricts the method by which county employees file public records requests. This follows numerous records requests submitted by Sheriff Arpaio and the County Attorney’s office, which “struck many hard-working employees as little more than harassment, intimidation and busy work,” according to Maricopa County spokesman Richard De Uriarte.
Just one of Arpaio’s records requests, for every e-mail, calendar and phone record for 36 county workers, will cost taxpayers an estimated $911,157. Sheriff Arpaio refused to explain why he was seeking such extensive information on county employees, saying it was part of a “criminal investigation.” He also denied that the records request was a fishing expedition, stating “I don’t know how to fish. I’ve never been fishing in my life.”
Apparently Arpaio doesn’t mind using the public records law for his own questionable purposes – he just has a problem complying with it when the sheriff’s office is the subject of public records requests.
Additional sources: www.rcfp.org, Arizona Republic, Phoenix New Times, www.kpho.com
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Related legal cases
Phoenix New Times, L.L.C. v. Arpaio
|Cite||217 Ariz. 533 (Ariz. Ct. App. 2008), review denied|
|Level||State Court of Appeals|
Arpaio v. Citizen Publ’g Co.
|Cite||2008 Ariz. App. LEXIS 163 (Ariz. Ct. App., Dec. 18, 2008), review denied|
|Level||State Court of Appeals|
West Valley View v. Maricopa County Sheriff’s Office
|Cite||216 Ariz. 225 (Ariz. Ct. App. 2007), review denied|
|Level||State Court of Appeals|