from the Superior Court in Maricopa County No. CV2014-007505
The Honorable David B. Gass, Judge
Coppersmith Brockelman, PLC, Phoenix By L. Keith Beauchamp,
Roopali H. Desai, Shelley Tolman Counsel for
Arizona Attorney General's Office, Phoenix By Dawn
Rachelle Williams, Philip R. Wooten Counsel for
James B. Morse Jr. delivered the opinion of the Court, in
which Presiding Judge Randall M. Howe and Judge Joshua D.
Rogers  joined.
The Arizona Department of Child Safety
("DCS") appeals the superior court's order in
which it awarded attorney's fees to the American Civil
Liberties Union of Arizona ("ACLU-AZ") pursuant to
A.R.S. § 39-121.02(B). DCS argues that the superior
court erred when it found that DCS failed to promptly produce
certain documents and that ACLU-AZ had "substantially
prevailed" in the litigation. For the reasons outlined
herein, we affirm the superior court's order as to the
prompt production of documents but vacate the order as to
whether ACLU-AZ had substantially prevailed, the grant of
attorney's fees, and remand for further proceedings.
AND PROCEDURAL BACKGROUND
This is the second appeal in this matter. A detailed summary
of this case's background is provided in American
Civil Liberties Union of Arizona v. Arizona Department of
Child Safety, 240 Ariz. 142, 145-46, ¶¶ 2-7
(App. 2016) (ACLU-AZ I ").
In May 2013, ACLU-AZ contacted DCS and requested copies of
certain public records. ACLU-AZ I, 240 Ariz. at 145,
¶ 2. After initially providing responsive documents,
including documents derived from data contained in DCS's
case management system, called the Children's Information
Library and Data Source ("CHILDS"), DCS abruptly
halted production and ceased communicating with ACLU-AZ.
Id. at ¶ 3. A few months later, ACLU-AZ
submitted additional sets of public-records requests, which
DCS left unacknowledged and unanswered. Id. at
145-46, ¶¶ 4-5. During this time, DCS was
attempting to address thousands of cases that had been
resolved improperly without investigation (the "Not
Investigated" cases), while also navigating a
significant organizational restructuring resulting from the
failure to investigate those cases.
Dissatisfied with the lack of document production, ACLU-AZ
sent DCS a pre-suit demand letter about its outstanding
public-records requests. DCS "acknowledge[d] the delay
that [had] occurred in providing" responses to the
remaining requests and said it would begin determining
"what data [could] still be produced without creating an
undue burden[.]" ACLU-AZ then filed this action.
Id. at 145, ¶ 6. Within two months, DCS
provided approximately five-hundred pages of documents to
ACLU-AZ. Id. at 152, ¶ 31. After producing
these records, DCS objected to the remainder of the requests,
arguing that those requests required the creation of new
documents using the data contained in CHILDS. Id. at
148, ¶ 13. Ultimately, DCS prevailed on this issue
before the superior court and ACLU-AZ appealed, resulting in
In ACLU-AZ I, we agreed that ACLU-AZ's
outstanding requests asked "DCS to tally and compile
aggregate information contained in CHILDS" and therefore
affirmed the superior court's ruling that DCS was not
required to provide any additional documents. Id. at
151, ¶ 27. However, we reversed the superior court to
the extent it failed to answer the threshold question of
whether the non-confidential information in the CHILDS
database was a public record. Id. at 146, 150,
¶¶ 9, 23. We additionally remanded to the superior
court to decide the promptness of the documents produced
after ACLU-AZ filed suit ("post-litigation
documents"). Id. at 151, ¶ 31. As a
result, we also reversed the superior court's denial of
ACLU-AZ's attorney's fees and directed the superior
court to "reconsider whether ACLU-AZ ha[d]
'substantially prevailed' in this case."
Id. at 153, ¶ 37.
On remand, the parties agreed to proceed on the existing
record and relied on the transcript and exhibits from the
September 30, 2014, hearing. ACLU-AZ argued that the records
produced were not promptly provided and the delay in
production was substantial, particularly considering that the
records provided were not complex. ACLU-AZ further asserted
that DCS's reasons for delaying production amounted to
nothing more than inattentiveness. On whether it had
substantially prevailed, ACLU-AZ claimed that this
Court's determination that CHILDS was a public record,
along with DCS's provision of the requested
post-litigation documents, was sufficient evidence that
ACLU-AZ had "substantially prevailed."
In response, DCS argued that it was suffering from
significant administrative burdens while the requests were
pending and had focused its resources on addressing the
crisis arising out of the 6, 500 "Not Investigated"
reports. DCS also claimed that the organizational
restructuring that stemmed from that crisis had created
internal confusion. DCS argued that these burdens, combined
with the breadth and complexity of ACLU-AZ's requests,
showed that the post-litigation records had been produced
promptly. DCS also advanced several arguments that ACLU-AZ
had not substantially prevailed. First, ACLU-AZ could not
have substantially prevailed because both parties had
prevailed in part. Second, ACLU-AZ did not prevail because
DCS would have provided the post-litigation documents without
the lawsuit. Finally, ACLU-AZ did not "substantially
prevail" on appeal on the CHILDS database issue because
DCS had always maintained that the information in the
database was a public record and objected to ACLU-AZ's
requests only to the extent they required DCS to create new
records and programs to parse that information, an issue
ACLU-AZ I resolved in DCS's favor.
The superior court heard oral argument, analyzed the evidence
and transcripts of the original hearing, and ultimately
awarded ACLU-AZ $239, 842.21 in attorney's fees and
costs. DCS timely appealed. This Court has jurisdiction over
this appeal pursuant to A.R.S. § 12-120.21.
DCS argues that the superior court erred in: (1) holding that
the production of the "post-litigation" documents
was not prompt; (2) holding that ACLU-AZ substantially
prevailed; and (3) awarding ACLU the entire amount of its
requested attorney's fees. We discuss each of these
arguments in turn.
Promptness of the Production of the Post-Litigation
Standard of Review
We review the promptness of a response to a public-records
request de novo, but defer to the superior
court's factual findings unless they are clearly
erroneous. Hodai v. City of Tucson, 239 Ariz. 34,
39, 45, ¶¶ 8, 35 (App. 2016) (citing Phx.
Newspapers, Inc. v. Keegan, 201 Ariz. 344, ¶ 18
(App. 2001) and McKee v. Peoria Unified Sch. Dist,
236 Ariz. 254, 258, ¶¶ 14-15 (App. 2014)).
The Post-Litigation Records Were Not Promptly
In ACLU-AZ I, we remanded and ordered the superior
court "to decide whether DCS promptly furnished the
post-litigation records." 240 Ariz. at 152, ¶ 31.
Though the timeframe to produce responsive documents is not
fixed, Arizona public record law requires prompt disclosure.
See id. (citing A.R.S. § 39-121.02(D)(1)). We
have defined "prompt" as "being 'quick to
act' or producing the requested records 'without
delay.'" Id. at 152, ¶ 32 (quoting
Phx. New Times, LLC v. Arpaio,217 Ariz. 533, 538,
¶ 14 (App. 2008)). We noted that "on remand DCS
[would] bear the burden of showing that ACLU-AZ's request
for the post-litigation documents posed an unreasonable
administrative burden" and that DCS would need to
"articulate sufficiently weighty reasons to tip the
balance away from the ...