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

Court of Appeals of Arizona, First Division

January 14, 2020


          Appeal 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 Plaintiff/Appellee

          Arizona Attorney General's Office, Phoenix By Dawn Rachelle Williams, Philip R. Wooten Counsel for Defendant/Appellant

          Judge James B. Morse Jr. delivered the opinion of the Court, in which Presiding Judge Randall M. Howe and Judge Joshua D. Rogers [1] joined.


          MORSE, JUDGE:

         ¶1 The Arizona Department of Child Safety ("DCS")[2] 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.


         ¶2 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 ").

         ¶3 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.

         ¶4 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 ACLU-AZ I.

         ¶5 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").[3] 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.

         ¶6 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."

         ¶7 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.

         ¶8 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.


         ¶9 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.

         I. Promptness of the Production of the Post-Litigation Records

         A. Standard of Review

         ¶10 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)).

         B. The Post-Litigation Records Were Not Promptly Produced.

         ¶11 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, ΒΆ 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 ...

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