Background
This template is for journalists seeking to compel an Arizona “public body”1 to turn over records requested under the Arizona Public Records Law. The template provides a general outline for complaints filed in Arizona superior court with areas for editing in brackets. Arizona does not provide for any administrative appeal from the denial of a records request. If a public body denies a request for records, the only remedy available for a journalist seeking documents is to appeal the denial through a special action in Arizona superior court.
The following explains the process:2
1. Request documents from the agency:
Under Arizona’s Public Records Law, “any person” has the right to inspect public records.3 The law provides that a person requesting records for a commercial purpose must provide a statement setting forth the commercial purpose for which the records will be used.4 However, the courts have held that journalists involved in newsgathering activities are not seeking records for a “commercial purpose,”5 and journalists therefore do not need to explain why they are requesting records.
Requests should be directed to the public officer who maintains custody of the documents. The Arizona Public Records Law does not require the submission of a written request for access to documents. If an oral request is denied, however, the requester should submit a written request to the head of the applicable agency or other public body. The request should be drafted narrowly, identifying the documents to be inspected as precisely as possible. The request should also ask for an index of the records that have been withheld and the reasons those records have been withheld.6 Access to public records is deemed denied if a custodian “fails to promptly respond to a request for production of a public record or fails to provide to the requesting person an index of any record or categories of records that are withheld from production . . . .”7 The Arizona Public Records Law does not specify a number of days for the required response, and whether a public body has “fail[ed] to promptly respond” is ultimately dependent upon the facts and circumstances of each request.
A person requesting access to public records may either inspect them during regular office hours or request that copies be mailed to him or her.8 If copies are requested, the document custodian may require advance payment of copying fees and postage charges.9
2. Optional: complain to an ombudsman:
Any citizen may complain to the Office of the Ombudsman-Citizens Aide regarding the actions of an agency.10 The ombudsman has the power to investigate and make recommendations to the governor, the legislature, and/or the appropriate prosecutor. If an agency denies a request for public records, an ombudsman recommendation could be useful to persuade the agency to release the requested records.11
3. File a special action in superior court:
Any person who has been denied access to public records may appeal the denial through a special action in the appropriate Arizona Superior Court.12 Any person who has been wrongfully denied access to public records also “has a cause of action against the officer or public body for any damages resulting from the denial.”13 A failure to promptly respond to a records request is deemed to be a denial for appeal purposes.14
Special actions are governed by the Arizona Rules of Procedure for Special Actions. The rules provide that the complaint may be filed in the Superior Court for one of the following counties: (a) the county in which the public body or officer involved “has or should have determined the matter to be reviewed”; (b) the county of the principal place of business of the public body or officer involved; or (c) where a state (as opposed to a political subdivision) officer or body is involved, either in Maricopa County or the county of the plaintiff’s residence.15 The only questions that may be raised in a special action are: (a) whether the defendant failed to exercise discretion which he had a duty to exercise, or to perform a duty required by law; (b) whether the defendant proceeded or threatened to proceed in excess of jurisdiction or legal authority; or (c) whether a determination was arbitrary and capricious or an abuse of discretion.16
If the person seeking public documents substantially prevails in the court action, the court may issue an award for the attorney’s fees and other costs that he or she reasonably incurred in the action.17 Arizona law may also permit an award of attorneys’ fees against a person who unsuccessfully appeals a denial of a records request, if the court determines that the person made a claim that was groundless and not in good faith.18
If court action becomes necessary to compel the production of public documents, the following template may be used to prepare the complaint.19 In addition to filing a complaint, it may be possible to expedite resolution of the judicial proceeding by filing an application to show cause (supported by an affidavit or sworn declaration), which would ask the court to issue an order for the defendant to show cause why the requested relief should not be granted.20 In a show cause proceeding, the usual time periods for the defendant to answer can be shortened.21
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1 The Arizona Public Records Law defines the term “public body” to mean “this state, any county, city, town, school district, political subdivision or tax-supported district in this state, any branch, department, board, bureau, commission, council or committee of the foregoing, and any public organization or agency, supported in whole or in part by monies from this state or any political subdivision of this state, or expending monies provided by this state or any political subdivision of this state.” A.R.S. § 39-121.01(A)(2).
2 Additional information may be found in the Arizona Open Government Guide, published by the Reporters Committee for Freedom of the Press at http://www.rcfp.org/arizonaopen-government-guide.
3 A.R.S. § 39-121.
4 A.R.S. § 39.121.03(A).
5 E.g., Media America Corp. v. Phoenix Police Dep’t, 21 Media L. Rep. (BNA) 2087 (Maricopa County Super. Ct. 1993).
6 See A.R.S. § 39-121.01(D)(2).
7 A.R.S. § 39-121.01(E).
8 A.R.S. §§ 39-121 and 39-121.01(D).
9 A.R.S. § 39-121.01(D). Additional charges may also be assessed when documents are being requested for a “commercial purpose.” See A.R.S. § 39-121.03(A). Those additional charges should not apply to a journalist’s request for records, if he or she is seeking the records in connection with newsgathering activities.
10 A.R.S. §§ 41-1371 to -1378. Note that certain governmental entities, including the governor, attorney general, state treasurer, and secretary of state, are exempt from this law. Id. § 41-1372.
11 For more information, please consult the Arizona Ombudsman Citizens’ Aide, http://www.azoca.gov/open-meeting-and-public-records-law/overview/.
12 A.R.S. § 39-121.02(A).
13 A.R.S. § 39-121.02(C).
14 A.R.S. § 39-121.01(E).
15 Rule 4(b), Arizona Rules of Procedure for Special Actions.
16 Rule 3, Arizona Rules of Procedure for Special Actions.
17 A.R.S. § 39-121.02(B). See also Arpaio v. Citizen Publ’g Co., 221 Ariz. 130 (Az. Ct. App. 2008).
18 A.R.S. § 12-349.
19 Arizona Rule of Civil Procedure 8(h) requires plaintiffs to submit an informational cover sheet when filing the initial complaint. See the individual superior court website for the appropriate cover sheet requirements.
20 See Rule 4(c), Arizona Rules of Procedure for Special Actions; Rule 6(d), Rules of Civil Procedure for the Superior Courts of Arizona.
21 Id.