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Lunney v. State

Court of Appeals of Arizona, First Division

December 7, 2017

JOHN M. LUNNEY, et al., Plaintiffs/Appellants,
STATE OF ARIZONA, et al., Defendants/Appellees. FRED ZEDER, Defendant/Appellee.

         Appeal from the Superior Court in Maricopa County No. CV2015-003081 The Honorable Patricia A. Starr, Judge

          Zapata Law PLLC, Chandler By Julio M. Zapata Counsel for Plaintiffs/Appellants

          Jardine, Baker, Hickman & Houston, P.L.L.C., Phoenix By Michael Warzynski Counsel for Defendants/Appellees State of Arizona

          Dickinson Wright PLLC, Phoenix By Scot L. Claus, Holly M. Zoe Counsel for Defendant/Appellee Fred Zeder

          Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in which Judge Peter B. Swann and Judge Maurice Portley [1] joined.


          MCMURDIE, JUDGE:

         ¶1 Robin M. and John M. Lunney appeal the superior court's judgment in favor of the State. We hold the attorney general's office's involvement in responding to the Lunneys' public records requests did not violate Arizona's Public Records Law because it did not unnecessarily delay the process of promptly providing the requested information. We also hold under Arizona's Public Records Law: (1) when responding to public records requests, state agencies are required to query and search their electronic databases and produce responsive public records; (2) a public employee's private cell phone records pertaining to the conduct of public business may become public records subject to disclosure if a public records requestor establishes the employee used the cell phone for a public purpose; (3) without justification for the delay, a 135-day response time to a request is not prompt; and (4) under these facts, the State's responses to the Lunneys' other requests were otherwise prompt and complete. Accordingly, we affirm in part and remand for further proceedings consistent with this opinion.


         ¶2 Following the death of their son in December 2012, the Lunneys made numerous requests under Arizona's Public Records Law to the Arizona Department of Public Safety ("DPS") and the Arizona Department of Transportation ("ADOT"). Initially, the agencies sent the responses directly to the Lunneys. However, in July 2014, Assistant Attorney General Fred Zeder asked the agencies to forward all requests and responses to the attorney general's office. The attorney general's office would then forward the responses to the Lunneys in "Supplemental Disclosures."

         ¶3 In 2015, the Lunneys filed a statutory special action under Arizona Revised Statutes ("A.R.S.") section 39-121 against the State, ADOT, DPS, and Zeder in his official capacity.[2] The complaint alleged the defendants violated Arizona's Public Records Law by failing to provide access to public records, and applied for an order to show cause why the Lunneys' requested relief should not be granted. Zeder moved to dismiss the claim against him, which the court granted.[3]

         ¶4 Following a four-day hearing and additional briefing, the court found the State did not violate Arizona's Public Records Law by routing requests through the attorney general's office, and the State was not required to consult multiple databases to obtain information and create responsive documents. The superior court also made findings on each request at issue. The Lunneys had specifically claimed they were entitled to the private cell phone records of the officers at the scene of the accident, so the court ordered the parties to meet and prepare a joint report for the court on the cell phone issue. Following additional briefing, the superior court entered a final judgment finding for the State on all issues. The Lunneys timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).


         ¶5 The Lunneys raise four issues on appeal: (1) whether the agencies violated Arizona's Public Records Law by routing requests and responses through the attorney general's office instead of responding to the Lunneys directly; (2) when responding to requests, were the agencies required to query and search their electronic databases and produce records subject to disclosure from those databases; (3) does Arizona's Public Records Law require disclosure of police officers' private cell phone records, "where the officers use their private cellular phones in the ordinary course of their employment on agency business;" and (4) did the agencies violate Arizona's Public Records Law by failing to respond timely and completely to the Lunneys' requests.

         ¶6 Whether a document is a public record and whether a denial of access to public records was wrongful are issues of law we review de novo. Griffis v. Pinal County, 215 Ariz. 1, 3, ¶ 7 (2007); Cox Arizona Publ'ns, Inc. v. Collins, 175 Ariz. 11, 14 (1993).

         ¶7 "Public records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours." A.R.S. § 39-121. Arizona law defines "public records" broadly, and a presumption in favor of disclosure exists. Griffis, 215 Ariz. at 3-4, ¶ 8; see Carlson v. Pima County, 141 Ariz. 487, 489 (1984). Section 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 their official activities and of any of their activities which are supported by monies from this state or any political subdivision of this state."

         ¶8 Our supreme court has articulated three definitions of public records: (1) a record "made by a public officer in pursuance of a duty, the immediate purpose of which is to disseminate information to the public;" (2) a record "required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law or directed by law to serve as a memorial and evidence of something written, said or done;" or (3) any "written record of transactions of a public officer in his office, which is a convenient and appropriate method of discharging his duties, and is kept by him as such, whether required by . . . law or not." Mathews v. Pyle, 75 Ariz. 76, 78-79 (1952) (citations omitted). The "nature and purpose" of a document determines its status as a public record. Griffis, 215 Ariz. at 4, ¶ 10. A document must have a "substantial nexus with a government agency's activities, " and documents of a "purely private or personal nature" are not public records. Id.; Salt River Pima-Maricopa Indian Cmty. v. Rogers, 168 Ariz. 531, 541 (1991).

         A. Agencies are Entitled to Seek Legal Advice from the Attorney General's Office, and the Involvement of the Attorney General Did Not Violate Arizona's Public Records Law.

         ¶9 The Lunneys argue the State violated Arizona's Public Records Law by routing requests and responses through the attorney general's office, rather than responding directly to the Lunneys. The Lunneys contend Arizona's Public Records Law does not "specify that the agency furnish those documents to another agency or department, " and a fair reading of the law is that "production of responsive public records be made directly to the requestor, and certainly not some other arm of government."

         ¶10 As the chief legal officer of the State, the attorney general is required to be the legal advisor to state departments and to "render such legal services as the departments require." A.R.S. § 41-192(A)(1); Arizona State Land Dep't v. McFate, 87 Ariz. 139, 143 (1960). Determining whether a request is appropriate under the public records law can involve legal advice. See Fisher v. Maricopa County Stadium Dist., 185 Ariz. 116, 124 (App. 1995) ("legal advice" encompasses advice given to a public body "regarding the legal ramifications of the facts and information given" and "the legality" of the proposed action) (quoting City of Prescott v. Town of Chino Valley, 166 Ariz. 480, 485 (1990)). Accordingly, routing public record requests and responses through the attorney general's office to ensure legal compliance with Arizona's Public Records Law does not violate the law.

         ¶11 The Lunneys maintain, however, that Arizona's Public Records Law does not "envision" the restrictions placed upon the Lunneys by the assistant attorney general.[4] Specifically, the Lunneys argue the law does not allow an assistant attorney general to direct an agency to ignore a requestor, to order a requestor to refrain from contacting the agency from which he has sought documents, or to threaten a requestor with arrest "should he exercise his right to obtain documents directly from the [a]gencies."[5]

         ¶12 Generally, the attorney general's office "has no right to make rules or regulations in the other departments in connection with their operation." State ex rel. Morrison v. Thomas, 80 Ariz. 327, 332 (1956). Likewise, one party generally cannot object to the other party's legal representation. See Alexander v. Superior Court (State), 141 Ariz. 157, 161 (1984) ("Only in extreme circumstances should a party to a lawsuit be allowed to interfere with the attorney-client relationship of his opponent."). If the attorney general's office overstepped its authority with respect to an agency here, any objection is for the agency to raise, not the Lunneys. The Lunneys' complaint is limited to whether the State wrongfully denied them access to public records. See A.R.S. § 39-121.02(A) ("Any person who has requested . . . public records . . . and who has been denied access to . . . such records, may appeal the denial . . . .").

         ¶13 DPS's safety and records manager Teresa Fuentes testified that after the attorney general's office became involved, DPS continued processing responses just as it would any other request. But instead of sending them directly to the Lunneys, DPS sent the responses to the attorney general's office to be forwarded to the Lunneys. Zeder's paralegal testified it typically took one to three days for the attorney general's office to send a response to the Lunneys.[6] The superior court found the Lunneys did not establish that Arizona's Public Records Law "prohibits the procedure employed in this case" and that the "decision of the State . . . to route [the Lunneys'] requests through counsel resulted in no significant delay, and there has been no showing that the procedure resulted in denial of production of any documents." The superior court also found nothing "in the public records statutory scheme specifically requires an agency to provide records directly to a requestor, nor are an agency [or its] employees restricted from seeking legal advice."

         ¶14 Arizona's Public Records Law does not delineate the procedure state agencies must follow when responding to requests, other than to require a records custodian to "promptly furnish" public records. See A.R.S. §§ 39-121 to -128. "Courts will not read into a statute something that is not within the manifest intent of the Legislature as gathered from the statute itself." Collins v. Stockwell, 137 Ariz. 416, 420 (1983). The Lunneys do not allege that the Attorney General's involvement substantively affected the responses that the they received. See Carlson, 141 Ariz. at 491 ("[W]here the countervailing interests of confidentiality, privacy or the best interests of the state should be appropriately invoked to prevent inspection . . . the officer or custodian may refuse inspection."). Because the agencies are entitled to receive legal assistance from the attorney general's office, and because the procedure employed by the State in this case did not violate Arizona's Public Records Law by unnecessarily delaying the responses, we affirm the superior court's decision on this issue.

         B. Agencies are Required to Query and Search their Electronic Databases to Produce Responsive ...

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