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Arizona Reverses Denial of Attorney Fees In Arpaio Public Records Case

By Matt Clarke

An Arizona court of appeals has reversed the denial of attorney fees and award of costs to defendants in a suit brought to compel Maricopa County Sheriff Joseph M. Arpaio to produce public records.

In 2004, the Phoenix New Times (PNT), made nine requests of the Maricopa County Sheriff’s Office (MCSO) for public records pursuant to Arizona Revised Statutes (ARS) §§ 39-121 through 39-121.03. Except for one case, MSCO did not provide the records. Pursuant to ARS § 39-121.02, PNT and its reporter filed suit in state Superior Court to compel production of the public records and requesting attorney fees. After suit was filed, the records for seven requests were provided following delays ranging from 49 days to 143 days, five of which were in excess of 100 days. For one they were provided promptly before suit was filed and MSCO claimed no records existed for another.

Production of the public records mooted that portion of the lawsuit, leaving only the request for attorney fees. After briefing, but without an evidentiary hearing, the trial court denied attorney fees. In 2004, the statute on recovery of attorney fees in public records production cases required a finding of bad faith, or arbitrary or capricious action before the court gained discretion to award attorney fees. Current law only requires the person seeking public records to substantially prevail, but this suit was tried under the older law. The trial court found that the records had been promptly produced and that there was no bad faith. Therefore, it denied attorney fees and awarded defendants costs. Plaintiffs appealed.

The court of appeals held that the Arizona public records law requires the records to be promptly furnished, but does not define promptly. Other states have time limits on their public records laws ranging from three days to ten days. The MCSO had the burden of proving it was prompt in supplying the records. The court of appeals examined the reasons given by the MCSO for the delays: (1) no excuse; (2) didn’t read the request properly; (3) misunderstood the request; (4) didn’t like what the PNT was publishing about Arpaio and was angry with them, so didn’t want to have contact with them; (5) forgot to look in the email inbox; and (6) assumed there were no records because the case had been transferred to another jurisdiction. The court of appeals held that none of these excused the delays in production of public records. “If mere inattention by the employee of a public body could meet that body’s burden of establishing that it promptly provided documents, and thus that a request was not wrongfully delayed or denied, it would turn on its head the core purpose of the public records law, which is ‘to allow the public access to official records and other government information so that the public may monitor the performance of government officials and their employees.’” Therefore, MSCO was deemed to have wrongfully denied PNT access to public records and the trial court erred in ruling that they had not wrongfully denied access. With respect to one request, for which the MCSO claimed no such public records existed, the MCSO failed in its burden of proof to show that the records (booking reports and department records related to any inmate serving jail sentences at the Mesa jail from January 1, 2000 through September 20, 2004) did not exist and, in fact, had not even conducted a search for the requested department records. Therefore, the court of appeals reversed the trial court’s denial of attorney fees and award of costs to defendants, returning the case to that court to determine whether the wrongful denial of public records was in bad faith, arbitrary or capricious and whether attorney fees--including attorney fees for the appeal--should be awarded.

See: Phoenix New Times v. Arpaio, 277 P.3d 275 (App. 2008).

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Related legal case

Phoenix New Times v. Arpaio