FOREWORD

Arizona Public Records Law (A.R.S. §§ 39-121 to -128):  The Arizona Public Records Law can be traced to territorial days, when in 1901 the law was first enacted.  The Arizona Supreme Court has observed that “[h]istorically, this state has always favored open government and an informed citizenry.”  Arizona Newspapers Ass’n, Inc. v. Superior Court, 143 Ariz. 560, 564, 694 P.2d 1174, 1178 (1985); see also Phoenix Newspapers, Inc. v. Keegan, 201 Ariz. 344, 351, 35 P.3d 105, 112 (Ct. App. 2001) (“The core purpose of the public records law is to allow the public access to official records and other government information so that the public may monitor the performance of government officials and their employees.”) (citation omitted).

Arizona's statutory scheme is simple, providing “a broad right of inspection to the public.”  Carlson v. Pima County, 141 Ariz. 487, 489, 687 P.2d 1242, 1244 (1984).  By statute, “[p]ublic records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.”  A.R.S. § 39-121.  Once it is determined that a record is “reasonably necessary or appropriate to maintain an accurate knowledge of . . . official activities and of any . . . activities which are supported by monies from the state or any political subdivision of the state,” the document is presumptively open to public inspection.  A.R.S. § 39-121.01(B); see also Carlson, 141 Ariz. at 490, 687 P.2d at 1245.  As the Arizona Supreme Court has proclaimed, the Arizona Public Records Law evinces “[a] strong policy favoring open disclosure and access.”  Cox Arizona Publ’ns, Inc. v. Collins, 175 Ariz. 11, 14, 852 P.2d 1194, 1198 (1993); see also Carlson, 141 Ariz. at 491, 687 P.2d at 1246 (noting that “access and disclosure is the strong policy of the law”).

There are no statutory exceptions to disclosure found in the Arizona Public Records Law.  The courts, however, have identified three major exceptions to the presumption favoring disclosure: (1) confidentiality (i.e., when some other statute or regulation specifically protects records from disclosure), (2) privacy of persons, and (3) whenever disclosure would be “detrimental to the best interests of the state.”  Carlson, 141 Ariz. at 490, 687 P.2d at 1245.

Traditionally, the Arizona statutory scheme has favored reporters and other persons seeking access to public records.  To date, efforts to have wholesale legislative amendments to the law have failed.

Arizona's Open Meetings Law (A.R.S. §§ 38-431 to -431.09 (“OML”)):  Before enactment of open meetings legislation, Arizona provided little official access to governmental meetings.  In 1962, after eight previous attempts, the Arizona Legislature finally adopted an open meetings statute.  The original Act served as a framework and was not nearly as broad as the current OML.  The 1962 Act remained unchanged—in fact, no judicial interpretations of the Act were reported until 1974. The 1974 amendments amplified the Act—expanding definitions, requiring notice and minutes of meetings, detailing executive sessions, allowing ratification of violations by public bodies, and providing for equitable relief and exceptions.  See Ariz. Att’y Gen. Op. No. 75-5 (1975); D. Mitchell, Public Access to Governmental Records and Meetings in Arizona, 16 Ariz. L. Rev. 891 (1974).

Since 1974, the Legislature has passed numerous amendments strengthening the Act, many in response to an adverse judicial decision or attorney general's opinion.  Most notably, these changes included (1) replacing the term “governing body” with the current “public body”; (2) using the word “meeting” instead of “proceeding,” “regular meeting” or “official meeting”; and (3) expanding the declaration of public policy for open meetings.

[Note: Due to the numerous substantive amendments, a practitioner must take care not to rely on case law interpreting previous versions of the OML.  Because of the changes to the OML, the outline does not refer to Arizona case law regarding the OML that is irrelevant to the current form of the statute.]

Arizona’s OML also contains two unusual provisions.  First, a public body may ratify actions it takes in violation of the OML.  A.R.S. § 38-431.05.  Second, in some circumstances, a court may remove a public officer from office as a penalty for violating the law.  A.R.S. § 38-431.07(A).

Despite the numerous changes to the Act, its primary purpose has remained the same—to require multimember public bodies (such as the Legislature, city councils and school boards) to conduct their business openly.  See Long v. City of Glendale, 208 Ariz. 319, 325, 93 P.3d 519, 525 (Ct. App. 2004) (stating that “the policy [of the OML] is to open the conduct of the business of government to the scrutiny of the public and to ban decision-making in secret”) (citation and internal quotation marks omitted).  To that end, the law clearly and simply provides: “All meetings of any public body shall be public meetings and all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings.”  A.R.S. § 38-431.01(A).

The current declaration of public policy is a strong foundation for gaining access to meetings.  It states:

It is the public policy of this state that meetings of public bodies be conducted openly and that notices and agendas be provided for such meetings which contain such information as is reasonably necessary to inform the public of the matters to be discussed or decided. Toward this end, any person or entity charged with the interpretations of this article shall construe this article in favor of open and public meetings.

§ 38-431.09(A).  Unfortunately, although occasionally referred to by appellate courts, no appellate court has expressly relied upon this section to support a decision enforcing the OML.

Historically, the Arizona Attorney General’s Office has served as a strong proponent of the Act.  When the OML was amended in 1982, the Attorney General was specifically empowered to initiate litigation to secure compliance with the law.  Following the 1982 amendments, the Attorney General developed an Open Meetings Law Enforcement Task Force (“OMLET”) designed to achieve enforcement of the Act.  The Attorney General's Office has cooperated with the press in pursuing legal action against violators of the Act.  Attorney General Opinions, however, sometimes reflect a retraction from the OML’s general policy of access.  Fortunately, Attorney General Opinions are not binding on Arizona courts.  See City of Prescott v. Town of Chino Valley, 166 Ariz. 480, 483 n.2, 803 P.2d 891, 894 n.2 (1990).