The Arizona Supreme Court today unanimously reaffirmed that when citizens seek records from government agencies—as they have a right to do under state law—the government cannot wrongly withhold information and get away with it. On the contrary, while officials can legally refuse to turn documents over in certain circumstances, courts must take a fresh look at the facts, law, and documents to be sure the government is following the law. And if the government destroys records after they’ve been requested, that amounts to a denial of the request—entitling citizens to take their cases to court right away. Each of these moves—as well as another important part of the ruling involving attorney fees—moves the ball forward for transparency.
Today’s decision marks the third win in a string of recent victories for government transparency in Arizona.
This case began with a University of Arizona professor’s requests for records regarding the school’s compliance with anti-discrimination laws. One of the items Dr. Matthew Abraham sought was an audio recording of a committee meeting regarding those issues. But while the university produced a few records (some in redacted form), it withheld many others, including the recording.
Professor Abraham hired an attorney who demanded that the university comply with the requests as the law requires—whereupon university officials began revisiting their decision to withhold certain documents. During that process, they notified the professor that the recording was “no longer available.” In other words, university officials destroyed the recording after Abraham had requested it.
After almost a year of fruitless negotiations with the university, Abraham sued—at which point, the university produced more than 1,700 pages of additional documents it had wrongly withheld. The case went forward to resolve lingering disputes about whether even more documents should be disclosed and to determine whether Abraham was entitled to attorney fees given the university’s decision to destroy the recording.
The trial court denied those requests. And when Abraham appealed, a higher court effectively rewrote the rules for how courts review public records lawsuits. Appellate judges said that withholding and redaction decisions are discretionary—up to the government to decide—and that courts should only overturn them if that discretion was “abused.” In plain language, bureaucrats would be free to decide when to withhold documents and courts would be required to rubber-stamp their decisions in most cases.
That’s wrong, and today’s decision from the Arizona Supreme Court overturns it. Relying heavily on its recent decision in the Goldwater Institute’s own public records case against the City of Phoenix, the justices reiterated that courts cannot just take the government’s word for it when it comes to records redaction and withholding. They must skeptically review the government’s decision to block access to public records.
That issue is critical because the government shouldn’t get a thumb on the scale in its favor when it refuses to turn over documents that people have a right to see. Citing the Goldwater case, the court explained: “[a] standard of review that defers to agency determinations, especially over whether a nondisclosure or redaction serves the best interests of the state, would defeat the strong presumption of transparency and public access embodied in our public records statutes.”
What’s more, when the government destroys documents after they’re requested, the court held, that is legally the same as an “ultimate denial” of access—in fact, in this case, it was “an obvious violation” of the law. The government can only destroy or dispose of public records when expressly allowed by law. Importantly, the court said that government retention policies cannot be used to avoid transparency laws, calling into question inappropriately short records retention practices.
As for attorney fees, the court clarified that the government can be required to pay fees if it wrongly denies or delays access to public records, if a lawsuit is ultimately required. To rule otherwise “would frustrate the purposes of the public records laws by allowing a public entity to stonewall a request … without financial penalty.”
Government transparency is a crucial element of modern democracy and government officials shouldn’t be free to ignore their obligation to turn over records. Today’s ruling makes it easier not only for citizens to obtain access to records, but also to obtain legal representation if they need it, since they can recover those costs if they prevail. The risk of a fee award helps ensure a meaningful “financial incentive to fully and promptly comply with public records requests.”
Public records demands are critical to the Goldwater Institute’s work—that’s why we’ve gone to court many times (like this and this and this) to enforce the public records laws. But they’re also critical for ensuring that the people remain in charge of a government that’s supposed to work for them.
You can read our two amicus briefs in the Abraham case here and here.
Click here to learn more about how to use public records laws to find out what your government is up to.
Parker Jackson is a Staff Attorney at the Goldwater Institute.
