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American Civil Liberties Union of Arizona v. Arizona Department of Child Safety

Court of Appeals of Arizona, First Division

June 9, 2016

AMERICAN CIVIL LIBERTIES UNION OF ARIZONA, Plaintiff/Appellant,
v.
ARIZONA DEPARTMENT OF CHILD SAFETY, Defendant/Appellee.

         Appeal from the Superior Court in Maricopa County No. CV2014-007505 The Honorable Robert H. Oberbillig, Judge

          Coppersmith Brockelman PLC, Phoenix By Keith Beauchamp, Roopali H. Desai, Shelley Tolman Counsel for Plaintiff/Appellant.

          Arizona Attorney General's Office, Tucson By Dawn R. Williams Counsel for Defendant/Appellee.

          Sitren Legal, Phoenix By Carrie Ann Donnell Counsel for Amici Curiae Goldwater Institute & Arizona Center for Law in the Public Interest.

          Judge Patricia K. Norris delivered the opinion of the Court, in which Presiding Judge Jon W. Thompson and Judge Maurice Portley joined.

          OPINION

          NORRIS, JUDGE.

         ¶1 This appeal arises out of three requests for public records submitted by plaintiff/appellant, the American Civil Liberties Union of Arizona ("ACLU"), to defendant/appellee, the Arizona Department of Child Safety ("DCS"), and its predecessor agency. We hold that when, as here, a state agency maintains public records in an electronic database, Arizona's public records law requires the agency to take appropriate steps to query and search its database to identify, retrieve, and produce responsive records for inspection. Thus, we reverse the superior court's ruling to the contrary. We agree with the superior court, however, that when, as here, a state agency maintains public records in an electronic database, Arizona's public records law does not require the agency to tally and compile previously untallied and un-compiled information or data available in that database. Accordingly, we affirm in part and reverse in part the superior court's decision. We also remand to the superior court so it may reconsider whether DCS met its statutory obligation to "promptly" furnish certain public records to the ACLU, and whether the ACLU is entitled to an award of attorneys' fees and costs.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 In May 2013, the ACLU submitted a public records request to DCS's predecessor, the Arizona Department of Economic Security ("DES"), which at that time was the state agency statutorily responsible for administering child welfare services, and investigating and responding to allegations of child abuse and neglect. The request, which consisted of 30 separate requests with multiple subparts, sought records concerning child welfare services in the possession of DES's Division of Children, Youth, and Families ("DCYF") and Child Protective Services. Many of the separate requests required DES to tally or compile numerical or statistical information and percentages. For example, request no. 12 asked DES to provide "[t]he number of children who were substantiated victims of abuse and/or neglect perpetrated by their caregiver(s) while placed" in out-of- home: (a) unlicensed foster care; (b) licensed foster care; (c) congregate care. And, request no. 18 asked DES to provide:

The average number of placements experienced by children in out-of-home care as of the last day of SFY [State Fiscal Year] 2011, 2012 and 2013, or of each of the Semi-Annual Reporting Periods within those SFYs, by total time in care according to the following (or any similar available) distribution: (a) 1 year or less; (b) 1-2 years; (c) 2-5 years; and (d) more than 5 years.

         ¶3 DES responded to certain of the separate requests relying on information from reports it had previously generated. And, as discussed in more detail below, DES's Report and Statistics Unit retrieved some of the information requested by the ACLU by searching its mainframe based electronic case management system, "CHILDS, " an acronym for Children's Information Library and Data Source. DES produced records responsive to 14 of the ACLU's separate requests between May and October 2013. But, by year's end, DES had not produced records responsive to the remaining separate requests.

         ¶4 On January 28 and 31, 2014, the ACLU submitted a second and a third public records request to DES, and its newly created Department of Child Safety and Family Services ("DCSFS").[1] The January 28 request asked for information about children in foster care, that is, out-of-home placement; the January 31 request asked for information about children who may have been abused or neglected, but were not in foster care at the time DES received reports of their possible mistreatment.

         ¶5 The January 28 request contained 37 separate requests with multiple subparts; the January 31 request contained 24 separate requests, also with multiple subparts. Both requests again required DES to tally or compile numerical or statistical information and percentages. For example, the January 28 request no. 28 asked DES to provide "the number of children in the following age groups who were placed in shelters at any time during the requested periods while in DES foster care custody: (a) ages 0-1; (b) ages 1-5; (c) ages 6-8; (d) ages 9-12; and (e) ages 13-17." The January 31 request no. 1 asked DES to provide:

[T]he number of Reports concerning children who were not in out-of-home care that were assigned for investigation as Priority 1: High Risk, and that (a) were initiated in a timely manner, and (b) not initiated in a timely manner. For purposes of this question, "initiated in a timely manner" means that the investigation's Initial Response Time was two hours or less if the investigation was assigned a Standard Response Time, or 24 hours or less if assigned a Mitigated Response Time.

         DES did not acknowledge receipt of the January 2014 requests until April 28, 2014.

         ¶6 On May 2, 2014 the ACLU filed a statutory special action asking the superior court to order DES to provide "copies" of all the requested records it had failed to produce, index of any records it had withheld, and its reason for withholding any record. See Ariz. Rev. Stat. ("A.R.S.") § 39-121.01(D)(2) (Supp. 2015)[2] (detailing agency's obligations when it withholds public records); A.R.S. § 39-121.02(A) (Supp. 2015) (authorizing special action from denial of access to public records). The ACLU also requested an award of attorneys' fees and costs. See A.R.S. § 39-121.02(B) (authorizing award of attorneys' fees and costs reasonably incurred if person seeking public records has "substantially prevailed"). Subsequently, consistent with legislation that created DCS as the new standalone agency responsible for state-mandated child welfare functions, DCS replaced DES as the sole defendant in the case. As we discuss below, during the course of the litigation, DCS provided additional public records to the ACLU. See infra ¶ 31.

         ¶7 After discovery, briefing, and an evidentiary hearing, the superior court rejected the ACLU's request that it order DCS to produce records responsive to the remaining outstanding record requests ("the outstanding requests").[3] The court held that Arizona's public records law did not require DCS to respond to the outstanding requests because the ACLU was not seeking existing records, but instead was asking DCS to "create" new public records. The court ruled that Arizona's public records law did not require an agency to create a public record by "writ[ing] a new software program to obtain the [requested] information" or by "research[ing] and analyz[ing] data to compile statistics, which is a process that creates records where none exist." And, although the superior court acknowledged the ACLU had argued that the non-confidential data in CHILDS constituted a public record, it did not directly decide the issue.

         DISCUSSION

         I. CHILDS is a Public Record

         ¶8 The ACLU first argues the superior court should have decided that the electronic records and data maintained by DCS in CHILDS makes CHILDS a public record, and, therefore, DCS was required to query or search CHILDS to respond to its public records requests. Exercising de novo review, we agree with the ACLU that the electronic records and data maintained by DCS in CHILDS makes CHILDS a public record. See Griffis v. Pinal Cty., 215 Ariz. 1, 3, ¶ 7, 156 P.3d 418, 420 (2007) (whether document is a public record under Arizona's public records law presents a question of law subject to de novo review).

         ¶9 Arizona law defines "public record" broadly and creates a presumption requiring the disclosure of public documents. Id. at 4, ¶ 8, 156 P.3d at 421; see also A.R.S. § 39-121 (2011) (affirming presumption of openness; "[p]ublic records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours"). Although our statutes do not expressly define the phrase "public records and other matters, " A.R.S. § 39-121.01(B) requires "[a]ll officers and public bodies" to maintain all records "reasonably necessary or appropriate to maintain an accurate knowledge of [a public entity or officer's] official activities and of any of their activities which are supported by monies from this state or any political subdivision of this state." As the Arizona supreme court recognized in Carlson v. Pima County, this language creates a "statutory mandate which, in effect, requires all officers to make and maintain records reasonably necessary to provide knowledge of all activities they undertake in the furtherance of ...


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