D. Fee provisions or practices.

The Arizona Public Records Law distinguishes between records requested for a “commercial purpose” versus a “non-commercial purpose.”

Non-Commercial Purpose:

For “non-commercial purposes,” the Public Records Law mandates the furnishing of such copies, printouts or photographs and permits the custodian of records to “charge a fee if the facilities are available” for most records.  A.R.S. § 39-121.01(D)(1).

State law, however, prohibits a state, county, city or any officer or board from demanding or receiving “a fee or compensation for issuing certified copies of public records or for making search for them, when they are to be used in connection with a claim for a pension, allotment, allowance, compensation, insurance or other benefits which is to be presented to the United States or a bureau or department thereof.”  A.R.S. § 39-122(A).  Moreover, a crime victim or an immediate family member is entitled to receive one free copy of the police report and the minute entry or transcript “that arises out of the offense committed against the victim and that is reasonably necessary for the purpose of pursuing a claimed victim’s right.”  A.R.S. § 39-127(A).

While some public bodies have attempted to impose prohibitively high fees to discourage requests under the law, the media has succeeded in challenging and reducing such fees.  Cf. Phoenix Newspapers, Inc. v. Purcell, 187 Ariz. 74, 79-80, 927 P.2d 340, 345-46 (Ct. App. 1996) (finding the high costs imposed by A.R.S. § 16-168(E) for producing voter registration lists was reasonable because “[it]cannot sit as a super-legislature to determine the wisdom, the necessity, or the inconvenience of a legislative enactment”).

Commercial Purpose:

A “commercial purpose” is defined as

the use of a public record for the purpose of sale or resale or for the purpose of reproducing a document containing all or part of the copy, printout or photograph for sale or the obtaining of names and addresses from public records for the purpose of solicitation or the sale of names and addresses to another for the purpose of solicitation or for any purpose in which the purchaser can reasonably anticipate the receipt of monetary gain from the direct or indirect use of the public record.  Commercial purpose does not mean the use of a public record as evidence or as research for evidence in an action in any judicial or quasi-judicial body.

A.R.S. § 39-121.03(D).

A person requesting copies, printouts or photographs of public records for a commercial purpose “shall provide a statement setting forth the commercial purpose for which the copies, printouts or photographs will be used.” A.R.S. § 39-121.03(A).  Upon receiving the statement, the custodian of records may provide reproductions for a charge consisting of the following:

1.      A portion of the cost to the public body for obtaining the original or copies of the documents, printouts or photographs.

2.      A reasonable fee for the cost of time, materials, equipment and personnel in producing such reproduction.

3.      The value of the reproduction on the commercial market as best determined by the public body.

A.R.S. § 39-121.03(A).

If records are used for a commercial purpose when obtained for a noncommercial purpose or for another commercial purpose, the person in addition to other penalties may be liable for (1) three times the amount charged for the records, plus costs and reasonable attorneys’ fees, or (2) three times actual damages if the public records would not have been disclosed for that specific commercial purpose.  A.R.S. § 39-121.03(C).

Arizona media consistently have taken the position that journalists involved in newsgathering activities are not seeking records for a “commercial purpose.”  The Superior Court and Arizona Attorney General have agreed with that position.  Media America Corp. v. Phoenix Police Dep't, 21 Media L. Rep. (BNA) 2087 (Maricopa County Super. Ct. 1993); Ariz. Att’y. Gen. Op. No. I86-90.  In addition, the Arizona Court of Appeals has stated that “[l]earning facts from public records that might inform one on a daily occupation or might be newsworthy would not be a commercial purpose.”  Star Publ’g Co. v. Parks, 178 Ariz. 604, 605, 875 P.2d 837, 838 (Ct. App. 1993).