Arizona

Access to electronic records in Arizona is not specifically outlined but the public records law, but reporters have been able to obtain databases from government agencies. The law still leaves room for problems. For example, the law does not make clear whether or not an agency must provide actual data or whether a computer printout satisfies a request. That can be a problem for reporters who need an actual database, rather than a printout. Databases commonly used by reporters in other states, such as birth and death records, are exempt from disclosure in Arizona.

The law. The Arizona Public Records Law applies to “public records and other matters.” Ariz. Rev. Stat.§ 39-121. The statute strongly implies a right of access to electronic records, requiring a custodian of records to provide access to “copies, printouts, or photographs” and “access . . . for the purpose of making copies, printouts, or photographs of a public record which a person has a right to inspect.” Ariz. Rev. Stat. § 39-121.01(D).

Although “public record” is not defined by statute, the Arizona Supreme Court has defined public records as “all records required to be kept under Ariz. Rev. Stat. § 39-121.01(B).”In another case the court said that a public record “is one made by a public officer in pursuance of a duty, the immediate purpose of which is to disseminate information to the public, or to serve as a memorial of official transactions for public reference.” Otherwise stated, the court has observed that few, if any, records in the possession or control of a public officer will not be deemed to be public records. Also, this term has been expansively interpreted by the Office of the Attorney General in its published opinions. Records include books, papers, maps, photographs, or other documentary materials regardless of physical form, including electronic information, made or received by any governmental agency in pursuance of law or in connection with the transaction of public business. Ariz. Rev. Stat. § 41-1350.

Cases & opinions. Public employees are deemed to be unlikely to have a legitimate expectation of privacy in personal documents that they have chosen to place in public computer files. Thus, e-mail, unless otherwise exempted, may be subject to state access provisions. Star Publishing Co. v. Pima County Attorney’s Office, 891 P.2d 899 (Ariz. Ct. App. 1994).

The governor’s office prohibited furnishing a labor organization with copies, printouts or photographs of a list of names, addresses and phone numbers of people employed by a film company, believing that the list was requested for a commercial purpose and that disclosure would violate the privacy of people on the list. Exec. Order No. 92-12 (April 16, 1992). When Arizona law does not directly address a records disclosure issue, the courts will look to the federal Freedom of Information Act for guidance. Scottsdale Unified School Dist. No. 48 of Maricopa County v. KPNX Broadcasting Co., 937 P.2d 689 (App. Div.1 1997). Although Arizona generally supports an “open access” policy, such access is not unqualified. Phoenix Newspapers Inc. v. Purcell, 927 P.2d 340 (Ariz. Ct. App.1996).

The Arizona Attorney General’s Office has concluded that “at least the product of electronic databases is a public record, although the disks, software, database, or raw information itself probably need not be made accessible to the public.” Also, the Arizona Court of Appeals has ordered release of computer backup tapes of a public agency including e-mail communications of employees. Star Publishing v. Pima County Attorney’s Office, 891 P.2d 899 (Ariz. Ct. App. 1994)

Fees. The statutes provide that a custodian of records “may charge a fee” for copies. Ariz. Rev. Stat. § 39-121.01(D)(1). Reasonable fees may include “cost of time, equipment and personnel” to produce copies, but not the cost of searching for records. Ariz. Att’y Gen. Op. I86-090 (Aug. 25, 1986). When the request is for a “commercial purpose,” the law allows recovery of search, copying and other costs.” Ariz. Rev. Stat. Ann. § 39-121.03(A). Agencies generally have agreed that journalism is not a commercial purpose.