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Arizona

Open Government Guide

Author

Daniel C. Barr
Katherine E. May
Perkins Coie LLP
2901 North Central Avenue, Suite 2000
Phoenix, Arizona 85012
(602) 351-8000
dbarr@perkinscoie.com
kmay@perkinscoie.com

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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.”  Ariz. 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 Cty., 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 this state or any political subdivision of this 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).

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Open Records

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I. Statute

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A. Who can request records?

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1. Status of requester

Under the Arizona Public Records Law, “any person” may inspect public records. A.R.S. § 39-121.

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2. Purpose of request

“[A] person’s right to public records under the Public Records Law is not conditioned on his or her showing, or a court finding, that the documents are relevant to anything.”  Bolm v. Custodian of Records of Tucson Police Dep't, 193 Ariz. 35, 39, 969 P.2d 200, 204 (Ct. App. 1998).

Commercial Use. Public records may be used for commercial purposes. A.R.S. § 39-121.03(A).

If the records custodian determines that the proposed commercial use of public records would constitute “a misuse of public records or . . . an abuse of the right to receive public records, the custodian may apply to the governor requesting that the governor by executive order prohibit the furnishing of copies, printouts or photographs for such commercial purpose.”  A.R.S. § 39-121.03(B).  If the governor fails to issue an executive order prohibiting the disclosure within thirty (30) days of the application date, the custodian of public records must provide the copies, printouts or photographs upon being paid the statutory fee.  Id.

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3. Use of records

The Arizona Public Records Law makes no restrictions on the subsequent use of the information provided.

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4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

The Arizona Public Records Law contains two operative definitions—“officer” and “public body”—for the purpose of subjecting certain documents to disclosure under the law.

“Officer” is defined as “any person elected or appointed to hold any elective or appointive office of any public body and any chief administrative officer, head, director, superintendent or chairman of any public body.”  A.R.S. § 39-121.01(A)(1).

“Public body” is defined by statute as “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).  The operative definition of a “public body” in Arizona is very broad.  Indeed, any “public organization or agency” supported by or expending public funds falls within the ambit of the Act.

Exempt Agencies:  No Arizona agencies are exempted in their entirety.

Every officer and every public body are obligated to preserve, maintain and care for public records pursuant to Arizona law.  A.R.S. § 39-121.01(C).

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1. Executive branch

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2. Legislative bodies

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3. Courts

Access to court records in Arizona is not governed by the Public Records Law, but instead by Arizona Supreme Court Rule 123.

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4. Nongovernmental bodies

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5. Multi-state or regional bodies

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6. Advisory boards and commissions, quasi-governmental entities

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7. Others

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C. What records are and are not subject to the act?

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1. What kinds of records are covered?

As indicated above, the Arizona Public Records Law applies to all documents in the custody of public officers, who are obliged “to make and maintain records reasonably necessary to provide knowledge of all activities they undertake in the furtherance of their duties.”  Carlson, 141 Ariz. at 490, 687 P.2d at 1245.  But “the mere fact that a writing is in the possession of a public officer or public agency does not make it a public record.”  Salt River Pima-Maricopa Indian Cmty. v. Rogers, 168 Ariz. 531, 538, 815 P.2d 900, 907 (1991).  Rather, a public officer must generate or use a record in a capacity related to his official duties for that record to be a “public record.”  Id.  Therefore, “only those documents having a ‘substantial nexus’ with a government agency’s activities qualify as public records.”  Griffis v. Pinal Cty., 215 Ariz. 1, 4, 156 P.3d 418, 421 (2007).

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2. What physical form of records are covered

The statute's reference to “[p]ublic records and other matters” strongly suggests that tangible records other than print material are also subject to inspection and copying under the statute.  A.R.S. § 39-121 (emphasis added).  In KPNX-TV v. Superior Court, the court held that “Arizona’s definition of public records can include videotapes,” as well as “all existing documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other materials, regardless of physical form or characteristics.”  183 Ariz. 589, 592, 905 P.2d 598, 601 (Ct. App. 1995); see also Star Publ’g Co. v. Pima Cty. Attorney’s Office, 181 Ariz. 432, 433-34, 891 P.2d 899, 900-01 (Ct. App. 1994) (computer backup tapes which include e-mail communication of employees are subject to public records law).

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3. Are certain records available for inspection but not copying?

The statute makes no distinction between the public's right to “examine” and its related right to obtain “copies, printouts or photographs of any public record during regular office hours.”  A.R.S. § 39-121.01(D)(1).

If the custodian “does not have facilities for making copies, printouts or photographs of a public record,” the requester “shall be granted access to the public record for the purpose of making copies, printouts or photographs.”  A.R.S. § 39-121.01(D)(2).  But the copies, printouts or photographs must be made “while the public record is in the possession, custody and control of the custodian of the public record and shall be subject to the supervision of such custodian.”  A.R.S. § 39-121.01(D)(3).

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4. Telephone call logs

Call logs are public record if calls are for a public purpose.  A “public employee’s private cell phone records pertaining to the conduct of public business may become public records subject to disclosure if a public records requestor establishes the employee used the cell phone for a public purpose.”  Lunney v. State of Arizona, No 1 CA-CV 16-0457 (Ariz. App. Dec. 7, 2017) at 2.

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5. Electronic records (e.g., databases, metadata)

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a. Can the requester choose a format for receiving records?

No Arizona statute or case addresses this issue.  As a matter of practice, reporters have been able to choose a format for receiving records.  If a record is requested in its native format, the public body must provide it in that format.  See Lake v. City of Phoenix, 222 Ariz. 547, 551, 218 P.3d 1004, 1008 (2009).

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b. Can the requester obtain a customized search of computer databases to fit particular needs

No Arizona statute or case addresses this issue.

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c. Does the existence of information in electronic format affect its openness?

No.  Star Publ’g, 181 Ariz. at 433-34, 891 P.2d at 900-01.  Indeed, “if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under [Arizona’s] public record laws.”  Lake, 222 Ariz. at 548, 218 P.3d at 1005.

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d. Online dissemination

No statute governs online dissemination

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6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

No Arizona statute or case addresses this issue, but a court would likely follow the Court of Appeals reasoning in Lunney v. State of Arizona, regarding a public employee’s use of a private cellphone.

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10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

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2. Particular fee specifications or provisions

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3. Provisions for fee waivers

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4. Requirements or prohibitions regarding advance payment

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5. Have agencies imposed prohibitive fees to discourage requesters?

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6. Fees for electronic records

E. Who enforces the Act?

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1. Attorney General's role

Not addressed.

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2. Availability of an ombudsman

In Arizona, any citizen may complain to the Office of the Ombudsman-Citizens Aide regarding the actions of an agency.  A.R.S. §§ 41-1371 to -1378.  In response to a complaint, the Ombudsman-Citizens Aide has the power to investigate the administrative acts of agencies and make recommendations to the governor, the legislature, and/or the appropriate prosecutor.  A.R.S. §§ 41-1376 to -1378.  Certain governmental entities, including the governor, attorney general, state treasurer and secretary of state, are exempt from this law.  A.R.S. § 41-1372.

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3. Commission or agency enforcement

Not addressed.

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F. Are there sanctions for noncompliance?

A person wrongfully denied access to public records “has a cause of action against the officer or public body for any damages resulting from the denial.”  A.R.S. § 39-121.02(C) (emphasis added).

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G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

3. Records retention requirements

Pursuant to A.R.S. § 41-151.12(3), only the Arizona State Library, Archives and Public Records has the authority to set retention periods.  The general records retention schedule can be found here and custom state agency retention schedules can be found here.

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4. Provisions for broad, vague, or burdensome requests

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A. Exemptions in the open records statute

There are no specific exceptions to disclosure codified in the Arizona Public Records Law.

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1. Character of exemptions

There are no specific exceptions to disclosure codified in the Arizona Public Records Law.

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2. Discussion of each exemption

There are no specific exceptions to disclosure codified in the Arizona Public Records Law.

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B. Other statutory exclusions

Arizona’s Public Records Law appears all-encompassing, but numerous separate statutes reduce its impact by deeming several records “confidential.”  Generally, the records of certain professional groups, legal proceedings, law enforcement agencies and health facilities are classified as confidential.  Several statutes are discussed topically, but there may be other statutes that are applicable to other records.

Moreover, the Public Records Law does not require the disclosure of public records or other matters pertaining to the “location of archaeological discoveries” or “places or objects that are included on or may qualify for inclusion on the [Arizona] register of historic places[,] . . . if the officer determines that the release of the information creates a reasonable risk of vandalism, theft or other damage” to these places or items.  A.R.S. § 39-125.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

The Arizona Supreme Court has recognized three common law circumstances in which documents can be withheld: (i) confidentiality, (ii) privacy or (iii) disclosure against the best interest of the state.  See Carlson, 141 Ariz. at 490, 687 P.2d at 1245.  “If these interests outweigh the public’s right of inspection, the [public body] can properly refuse inspection.  The [public body] has the burden of overcoming the legal presumption favoring disclosure.”  See Scottsdale Unified School Dist. No. 48 of Maricopa Cty. v. KPNX Broad. Co., 191 Ariz. 297, 300, 955 P.2d 534, 537 (1998) (internal quotation marks omitted).

Arizona Courts also have on occasion looked to the exceptions contained in the federal Freedom of Information Act for guidance.  Church of Scientology v. City of Phoenix Police Dep’t, 122 Ariz. 338, 340, 594 P.2d 1034, 1036 (Ct. App. 1979); see Phoenix New Times, L.L.C. v. Arpaio, 217 Ariz. 533, 539 n.3, 177 P.3d 275, 280 n.3 (Ct. App. 2008); see also Ariz. Bd. of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 258, 806 P.2d 348, 352 (1991); Salt River Pima-Maricopa Indian Cmty., 168 Ariz. at 540-41, 815 P.2d at 909-10.

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D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

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A. Autopsy and coroners reports

Autopsy reports are not “vital records” that are confidential under A.R.S. § 36-342See A.R.S. § 36-301(33) (defining vital records as either “a registered birth certificate or a registered death certificate”).  A.R.S. § 11-597 does not prohibit disclosure of autopsy reports, but it only expressly provides for disclosure to county attorneys.  In contrast, A.R.S. § 23-1072(A) expressly provides that the pathologist’s findings become part of the public record when the Industrial Commission of Arizona orders the performance of the autopsy.

In Parks, the court held that “autopsy reports are public records under A.R.S. §§ 11-594 and -597” and that the Pima County Forensic Center could not hold up disclosure pending notification of relatives unless it can point to “specific risks with respect to a specific disclosure.”  178 Ariz. at 605, 875 P.2d at 838.  Although autopsy reports, autopsy photographs, and investigative materials are public records, a court must conduct an in camera review to balance competing interests before permitting the release of any documents because they “inherently raise significant privacy concerns.”  Schoeneweis v. Hamner, 223 Ariz. 169, 173,175-76, 221 P.3d 48, 52, 54-55 (Ct. App. 2009).

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

“[T]he records of the Industrial Commission’s proceedings, orders and awards must be considered as public records[,] . . . [b]ut information which is not collected to serve as a memorial of an official transaction or for dissemination of information is private except as to a claimant or parties” as defined by statute.  Indus. Comm’n v. Holohan, 97 Ariz. 122, 126, 397 P.2d 624, 627 (1964).

When investigating minimum wage violations, all payroll or other business records obtained by the Industrial Commission or a law enforcement officer will be kept confidential, unless required by the prosecution.  A.R.S. § 23-364(D).

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C. Bank records

All records of the State Banking Department are not public records and cannot be disclosed except to certain specified persons.  A.R.S. § 6-129.

But A.R.S. § 6-129.01 provides that all documents filed by enterprises with the State Banking Department are open to public inspection, except for any information the superintendent determines in his judgment must be withheld for the public welfare or for the welfare of the financial enterprise.  An “enterprise” is defined as any person under the jurisdiction of the department other than “banks, trust companies, savings and loan associations, credit unions, consumer lenders, international banking facilities and financial institution holding companies” under the department’s jurisdiction. See A.R.S. §§ 6-101(6), (8).

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D. Budgets

Water facilities districts will keep several records, including its annual budget, open to inspection by the public.  A.R.S. § 48-5913(A)(4).

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E. Business records, financial data, trade secrets

No specific statute generally exempts business records, financial data or trade secrets from the rule favoring disclosure of public records in Arizona.  In several areas, however, records, trade secrets and proprietary data have been protected by individual statutes.  See, e.g., A.R.S. §  3-374(A)(1) (pesticide control); A.R.S. § 27-110(A) (geologic, engineering and feasibility studies); A.R.S. § 27-234(H) (lease of state lands for mineral claims); A.R.S. § 27-571 (well records); A.R.S. § 28-7707(A) (public-private partnerships in transportation); A.R.S. § 30-808 (electric retail competition information); A.R.S. § 49-487(C)(1) (air pollution); A.R.S. § 49-928(A)(1) (hazardous waste); A.R.S. § 49-967(A)(1) (pollution prevention); A.R.S. § 49-1012(A) (underground storage tanks).

In Ariz. Portland Cement Co. v. Ariz. State Tax Court, 185 Ariz. 354, 357, 916 P.2d 1070, 1073 (Ct. App. 1995), the court held that a taxpayer’s private business records, which were disclosed to the county assessor to protest the assessed valuation of its business property, remained confidential and were not subject to A.R.S. § 39-121.  Furthermore, to the extent that the court turned to the Freedom of Information Act for guidance in Church of Scientology, 122 Ariz. at 340, 594 P.2d at 1036, certain records containing trade secrets or commercial or financial information might be exempted from disclosure.  See 5 U.S.C. § 552b(d)(4).

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F. Contracts, proposals and bids

Contracts, proposals and bids are usually only confidential until a contract is awarded, unless the bidder designates and the state concurs that trade secrets or other proprietary data must remain confidential. See A.R.S. § 34-603(H) (procurement of professional services); A.R.S. § 28-7366(G) (construction services); A.R.S. § 28-7367(G) (multiple contracts for construction services); A.R.S. § 41-2533(D) (procurement project bids); A.R.S. § 41-2534(D) (procurement project proposals); see also A.R.S. § 38-658(A) (information reviewed by the Joint Legislative Budget Committee regarding health plans for state employees); A.R.S. § 41-401(L) (deliberations of the Joint Legislative Budget Committee and the Constitutional Defense Council about legal expenses that will exceed $50,000).

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G. Collective bargaining records

No reported decisions.

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H. Economic development records

A registration form constitutes an official public record once completed and signed by the elector and received by the county recorder.  A.R.S. § 16-161.  But certain public officials and victims of domestic violence can prevent the general public from accessing their residential address, telephone number, and voting precinct number by filing an affidavit with the state.  A.R.S. § 16-153; see Primary Consultants, L.L.C. v. Maricopa Cty. Recorder, 210 Ariz. 393, 397-98, 111 P.3d 435, 439-40 (Ct. App. 2005) (noting that voter registration records are public records subject to certain restrictions).

A form showing a declination to register to vote is confidential and may be used only for voter registration purposes.  A.R.S. § 16-140(C).  Moreover, public access is prohibited to the death records sent by the Department of Health Services to the Secretary of State for purposes of removing deceased persons from the statewide voter registration database.  A.R.S. § 16-165(D).

No partial or complete tallies of early elections will be divulged before all precincts have reported or one hour after the polls close on election day, whichever occurs first.  A.R.S. § 16-551(C).  The official canvass of an election becomes part of the public record and is kept by the Secretary of State, the appropriate city and town clerks, or the clerk of the board of supervisors. A.R.S. §§ 16-646(B), (D).

Code marks on ballots used in the primaries or general election cannot be “marked in any manner that will disclose the identity of the voter who votes that ballot.”  A.R.S. §§ 16-466(B), 16-468(2).

The Arizona Secretary of State’s report that includes “information on the number of ballots transmitted to absent uniformed services voters and overseas voters and the number of ballots returned and cast in the election” is available to the public.  A.R.S. § 16-142(B).

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I. Election Records

A registration form constitutes an official public record once completed and signed by the elector and received by the county recorder.  A.R.S. § 16-161.  But certain public officials and victims of domestic violence can prevent the general public from accessing their residential address, telephone number, and voting precinct number by filing an affidavit with the state.  A.R.S. § 16-153; see Primary Consultants, L.L.C. v. Maricopa Cty. Recorder, 210 Ariz. 393, 397-98, 111 P.3d 435, 439-40 (Ct. App. 2005) (noting that voter registration records are public records subject to certain restrictions).

A form showing a declination to register to vote is confidential and may be used only for voter registration purposes.  A.R.S. § 16-140(C).  Moreover, public access is prohibited to the death records sent by the Department of Health Services to the Secretary of State for purposes of removing deceased persons from the statewide voter registration database.  A.R.S. § 16-165(D).

No partial or complete tallies of early elections will be divulged before all precincts have reported or one hour after the polls close on election day, whichever occurs first.  A.R.S. § 16-551(C).  The official canvass of an election becomes part of the public record and is kept by the Secretary of State, the appropriate city and town clerks, or the clerk of the board of supervisors. A.R.S. §§ 16-646(B), (D).

Code marks on ballots used in the primaries or general election cannot be “marked in any manner that will disclose the identity of the voter who votes that ballot.”  A.R.S. §§ 16-466(B), 16-468(2).

The Arizona Secretary of State’s report that includes “information on the number of ballots transmitted to absent uniformed services voters and overseas voters and the number of ballots returned and cast in the election” is available to the public.  A.R.S. § 16-142(B).

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J. Emergency Medical Services records

(This section is blank.)

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K. Gun permits

Information and records maintained by the Department of Public Safety on applicants for a concealed weapon permit, permit holders, and instructors “shall not be available to any other person or entity except on an order from a state or federal court.”  A.R.S. § 13-3112(J).

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L. Homeland security and anti-terrorism measures

“Nothing in this chapter requires the disclosure of a risk assessment that is performed by or on behalf of a federal agency to evaluate critical energy, water or telecommunications infrastructure to determine its vulnerability to sabotage or attack.”  A.R.S. § 39-126.

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M. Hospital reports

“Unless otherwise provided by law, all medical records . . . are privileged and confidential.”  A.R.S. § 12-2292.  “Medical record” includes “all communications related to a patient’s physical or mental health or condition that are recorded in any form or medium and that are maintained for purposes of patient diagnosis or treatment, including medical records that are prepared by a health care provider or by other providers.”  A.R.S. § 12-2291(6).  Thus, medical or other records containing personally identifiable information may only be disclosed pursuant to statute. See, e.g., A.R.S. § 36-160(A) (state or county home health services); A.R.S. § 36-404(A)(2) (health care institutions); A.R.S. § 36-568.01 (developmental disabilities); A.R.S. § 36-509 (behavioral health); A.R.S. § 36-664(F) (communicable diseases); A.R.S. § 36-887(B) (child care facilities); A.R.S. § 36-897.12 (child care group homes); A.R.S. § 36-2152 (parental consent or court proceedings pertaining to unemancipated minors who want abortions); A.R.S. § 36-2220 (emergency medical services).

“The governing body of each licensed hospital or outpatient surgical center shall require that physicians admitted to practice in the hospital or center organize into committees or other organizational structures to review the professional practices within the hospital or center for the purposes of reducing morbidity and mortality and for the improvement of the care of patients provided in the institution.”  A.R.S. § 36-445.  All proceedings, records, and materials prepared in connection with these peer reviews are confidential.  A.R.S. § 36-445.01.

Many health care related boards acquire hospital and medical records during their investigations; these records are often statutorily protected as confidential. See, e.g., A.R.S. § 32-1451.01(E) (Arizona Medical Board); A.R.S. § 32-1551.01 (Naturopathic Physicians Medical Board); A.R.S. § 32-1664(M) (Board of Nursing); A.R.S. § 36-2245(K) (Department of Health Service’s oversight of ambulance services); A.R.S. § 32-3553(K) (Board of Respiratory Care).  Not only are the Arizona Medical Board’s investigative files not subject to A.R.S. § 39-121, they are absolutely privileged and not discoverable in civil litigation.  Ariz. Bd. of Med. Exam’rs v. Superior Court, 186 Ariz. 360, 361-62, 922 P.2d 924, 925-26 (Ct. App. 1996); but see State v. Ditsworth, 216 Ariz. 339, 342, 166 P.3d 130, 133 (Ct. App. 2007) (finding that § 32-1451(O) requires the Arizona Medical Board to make investigatory evidence available to the appropriate criminal justice agency if it “determines that a criminal violation may have occurred involving the delivery of health care”).

Several statutes delegate the authority to form rules of confidentiality about health care records.  See, e.g., A.R.S. § 36-107 (giving the Department of Health Services the power to designate confidentiality); A.R.S. § 36-2903(I) (directing the Director of the Arizona Health Care Cost Containment System to “prescribe by rule the types of information that are confidential and circumstances under which such information may be used or released”).

Disclosures of medical records also need to comply with the HIPAA privacy regulations.  See 45 C.F.R. Parts 160, 162 & 164.  Similarly, records maintained in connection with the performance of a program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation or research that is regulated or directly or indirectly assisted by the United States government must comply with the regulations implementing the federal substance abuse law.  See 42 C.F.R. Part 2.

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N. Personnel records

With respect to other information in personnel records, the Arizona Supreme Court has found that individuals’ privacy interests can put portions of public personnel files beyond the reach of A.R.S. § 39-121 if those interests outweigh the public’s right of inspection.  See Scottsdale Unified Sch. Dist., 191 Ariz. at 302-03, 955 P.2d at 539-40 (determining that the public interest in disclosure of the teachers’ birth dates was speculative and did not override the privacy interest of the teachers); Bolm, 193 Ariz. at 39-40, 969 P.2d at 204-05 (finding that the trial court appropriately concluded that the police department’s hiring and official records, but not personnel evaluations or internal affairs records, were subject to disclosure).

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1. Salary

An Arizona court has recognized that payroll records of public employees are public records.  See Phoenix New Times, 217 Ariz. at 544, 177 P.3d at 286.

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2. Disciplinary records

A public body must provide access to “all records that are reasonably necessary or appropriate to maintain an accurate knowledge of disciplinary actions, including the employee responses to all disciplinary actions, involving public officers or employees of the public body.”  A.R.S. § 39-128(A).  But the public body is not required to disclose any person’s home address, home telephone number, or photograph.  A.R.S. § 39-128(B).

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3. Applications

In Bolm v. Custodian of Records of Tucson Police Dep’t, the court held that the police department’s disclosure of hiring and official records was proper. 193 Ariz. 35, 969 P.2d 200 (Ct. App. 1998).

For multiple professional groups, the law provides that application information in a state board’s possession cannot be revealed. See, e.g., A.R.S. § 32-129(A) (architects), A.R.S. § 32-825(F) (podiatrists), A.R.S. § 32-1209 (dentists), A.R.S. § 32-1310(A) (embalmers), A.R.S. § 32-1746 (optometrists), A.R.S. § 32-2214(F) (veterinarians).

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4. Personally identifying information

The Arizona Public Records Law does not require “disclosure from a personnel file by a law enforcement agency or employing state or local governmental entity of the home address or home telephone number of eligible persons.”  A.R.S. § 39-123(A); see A.R.S. § 39-123(F)(4) (defining “eligible person” to include, among others, “a peace officer, . . . justice, judge, commissioner, public defender, prosecutor, code enforcement officer, adult or juvenile corrections officer, corrections support staff member, probation officer, member of the board of executive clemency, law enforcement support staff member” and domestic violence victims).  In addition, a law enforcement agency can only release a photograph of a peace officer under certain specified conditions.  A.R.S. § 39-123(C).

The names of prospects for university president, and presumably other high-level positions in public agencies, are confidential as revealing this information “could chill the attraction of the best possible candidates for the position.”  Ariz. Bd. of Regents v. Phoenix Newspapers, 167 Ariz. 254, 258, 806 P.2d 348, 352 (1991).  But “[c]andidates who actively seek a job run the risk of their desire becoming public knowledge” and therefore their names can be released to the media.  Id.

“The identity of executioners and other persons who participate or perform ancillary functions in an execution and any information contained in records that would identify those persons is confidential and is not subject to disclosure” to the public.  A.R.S. § 13-757(C).

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5. Expense reports

(This section is blank. See the point above.)

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6. Evaluations/performance reviews

7. Complaints filed against employees

8. Other

O. Police records

The release of police records is governed by the Arizona Public Records Law.  See Little v. Gilkinson, 130 Ariz. 415, 416, 636 P.2d 663, 664 (Ct. App. 1981) (“Although many states exempt police investigatory reports from their public-records access statutes, Arizona does not.”).

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1. Accident reports

Accident reports are available for review for a non-commercial purpose.  However, a law enforcement agency “[s]hall not allow a person to examine the [motor vehicle] accident report or any related investigation report or a reproduction of the accident report or a related investigation report if the request is for a commercial solicitation purpose.”  A.R.S. § 28-667(C)(1) (emphasis added).

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2. Police blotter

Not addressed.

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3. 911 tapes

Tapes of 911 calls are available to the public, “unless the government puts forward an interest that justifies withholding access” to the tapes.  See A.H. Belo Corp. v. Mesa Police Dep’t, 202 Ariz. 184, 187, 42 P.3d 615, 618 (Ct. App. 2002) (finding that the privacy of the injured child and his family were sufficient countervailing interests to preclude release of a 911 tape).  When transcripts of the calls are available, the public interest in the tapes is decreased because the same information is available by alternate means.  Id. at 188, 42 P.3d at 619 (noting that the television station did not argue that “the tape advances the purpose of the Public Records Act in any way that the transcript does not satisfy”).

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4. Investigatory records

In Cox Arizona Publications Inc. v. Collins, 175 Ariz. 11, 14, 852 P.2d 1194, 1998 (1993), the Arizona Supreme Court reversed the court of appeals’ ruling that the public is not entitled to examine police reports in “an active ongoing criminal prosecution.” The Arizona Supreme Court held that such a “blanket rule . . . contravenes the strong policy favoring open disclosure and access.” Thus, public officials bear the “burden of showing the probability that specific, material harm will result from disclosure” before it may withhold police records.  Mitchell v. Superior Court, 142 Ariz. 332, 335, 690 P.2d 51, 54 (1984).

However, A.R.S. § 13-2813 prohibits disclosing “an indictment, information or complaint . . . before the accused person is in custody or has been accused.”

“[R]eports of ongoing police investigations are not generally exempt from [Arizona’s] public records law,” so they must be disclosed unless the law enforcement agency can “specifically demonstrate how production of the documents would violate rights of privacy or confidentiality, or would be detrimental to the best interests of the state.”  Cox Ariz. Publ’ns, 175 Ariz. at 14, 852 P.2d at 1198 (internal quotation marks omitted).

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5. Arrest records

If accused, the arrest record of a juvenile who has been referred to juvenile court is open for public inspection.  A.R.S. § 8-208(A).  Arrest reports of other offenders are public records.  Phoenix New Times, 217 Ariz. at 545, 177 P.3d at 287.

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6. Compilations of criminal histories

Criminal histories maintained by the Board of Fingerprinting are exempt from the Arizona Public Records Law, except for a report that provides the number of applications for a good cause exception and the number of applications that were granted.  A.R.S. § 41-619.54.

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7. Victims

A crime victim or immediate family member is entitled to one free copy of the police report and any applicable minute entry and transcript.  A.R.S. § 39-127(A).

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8. Confessions

Confessions in police records are public records and thus presumed open for inspection and copying.

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9. Confidential informants

“A record of a communication between a person submitting a report of criminal activity to a silent witness, crime stopper or operation game thief program . . . is not a public record.”  A.R.S. § 12-2312.

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10. Police techniques

Wiretapping activity cannot be revealed except to specific public officials involved in the investigation.  A.R.S. § 13-3011.

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11. Mugshots

Mug shots are public records and thus presumed open for inspection and copying.

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12. Sex offender records

The Department of Public Safety maintains a website for sexual offenders who have been given a level two or level three risk assessment.  A.R.S. § 13-3827(A).  The website will provide (1) the offender’s name, address, and age, (2) a current photograph, and (3) the offense committed and notification level.  Id.  After a sexual offender has been released from confinement, the local law enforcement agency will notify the community of the offender’s presence.  A.R.S. § 13-3825(C).

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13. Emergency medical services records

With some exceptions, information, records, and data pertaining to the administration or evaluation of the Arizona emergency medical services system or trauma system are open to the public.  A.R.S. § 36-2220(A).  Prehospital incident history reports also are available to the public provided confidential or other protected information is removed.  A.R.S. § 36-2220(C).  But medical records or other records containing personally identifiable information may not be released unless required by law or pursuant to authorization.  A.R.S. §§ 36-2220(A)(1), (B).

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14. Police video (e.g, body camera footage, dashcam videos)

15. Biometric data (e.g., fingerprints)

16. Arrest/search warrants and supporting affidavits

17. Physical evidence

P. Prison, parole and probation reports

All records pertaining to the care and custody of prisoners are open to public inspection, except those portions that reveal the identity of a confidential informant, endanger a person’s life or physical safety, or jeopardize an ongoing criminal investigation. A.R.S. § 31-221(C); see, e.g., KPNX-TV v. Superior Court, 183 Ariz. 589, 593, 905 P.2d 598, 602 (Ct. App. 1995) (determining that the state has a legitimate security concern about disclosing a videotape showing undercover officers because of the risk, however slight, that they might be harmed).

A prisoner’s medical history, however, is confidential and may be used only in accordance with A.R.S. § 41-1606(B) and other applicable laws.

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Q. Professional licensing records

R. Public utility records

“No information furnished to the [Arizona Corporation Commission] by a public service corporation, except matters specifically required to be open to public inspection, shall be open to public inspection or made public except on order of the commission . . . or by the commission or a commissioner in the course of a hearing or proceeding.”  A.R.S. § 40-204(C).  A plan for constructing a new plant in Arizona “is not open to public inspection and shall not be made public if disclosure of the information in the plan could give a material advantage to competitors.”  A.R.S. § 40-360.02(D).

Schedules containing rates that are filed with the commission are open for public inspection.  A.R.S. §§ 40-365, 40-367(B).

A.R.S. § 27-522(B) provides that records of an oil or gas well drilled in unproven territory shall be confidential for one year after completion of the drilling.

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S. Real estate appraisals, negotiations

No case law.

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1. Appraisals

No case law.

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2. Negotiations

No case law.

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3. Transactions

Public notice, which includes the legal description, must be provided of all proposed sales and exchanges of state lands.  A.R.S. §§ 37-237, 37-604(C)(7).  In addition, all purchase offers for real property being disposed of by a state agency are public.  A.R.S. § 37-803(B)(2).

Information submitted by lessees of state lands to the state land department is confidential and not subject to public inspection, unless it pertains to the land.  A.R.S. § 37-282.

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4. Deeds, liens, foreclosures, title history

(This section is blank. See the point above.)

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5. Zoning records

(This section is blank. See the point above.)

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T. School and university records

The Public Records Law governs access to athletic, trustee and student records generally.

Access to certain educational records is controlled by federal law. A.R.S. § 15-141.

Some assessment and investigation records are specifically exempt from the Public Records Law.

A.R.S. §§ 15-350(A) and (B) provide that the Board of Education’s records from an immoral or unprofessional conduct investigation are “confidential and are not a public record.” However, the board can provide these records to the school that currently employs that individual.

A.R.S. § 15-537(I) provides that “evaluation report and performance classification of a certificated teacher retained by the governing board and the department of education are confidential, do not constitute a public record . . . . ” However, these records can be revealed to the certificated teacher or in an official proceeding regarding that individual’s employment.

A.R.S. §§ 15-551(A), (C) provide that the identity of any student who participates in a hearing regarding the discipline or dismissal of a teacher will be kept confidential.

In Arizona Board of Regents v. Phoenix Newspapers Inc., the court drew a distinction between a “prospect,” whose name was not subject to disclosure, and a “candidate,” whose was. The court stated that “[t]he public’s interest in ensuring the state’s ability to secure the most qualified candidates for the university president’s position is more compelling than its interest in, or need to know, the names of all of the prospects,” but held that releasing the names of the 17 final candidates served “[t]he public’s legitimate interest” and thus outweighed the candidates’ countervailing interests of privacy and confidentiality.  167 Ariz. 254, 258, 806 P.2d 348, 352 (1991).

“The right to inspect and review educational records and the release of or access to these records, other information or instructional materials is governed by federal law in the family educational and privacy rights act of 1974 . . . and federal regulations issued pursuant to such act.”  A.R.S. § 15-141(A).  The Family Educational Rights and Privacy Act of 1974 (“FERPA”) and associated regulations only permit disclosure of educational records with written parental consent, to comply with a judicial order, or pursuant to a lawfully issued subpoena.  See Catrone v. Miles, 215 Ariz. 446, 452-53, 160 P.3d 1204, 1210-11 (Ct. App. 2007) (citing 20 U.S.C. § 1232g (2000 & Supp. 2006) and 34 C.F.R. § 99.31(a)(9)(i) (July 1, 2006 and Oct. 13, 2006)).

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1. Athletic records

(This section is blank. See the point above.)

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2. Trustee records

(This section is blank. See the point above.)

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3. Student records

Student records are not public records.  See Congress Elementary Sch. Dist. No. 17 of Yavapai Cty. v. Warren, 227 Ariz. 16, 17 n.2, 251 P.3d 395, 396 n.2 (Ct. App. 2011).

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4. School foundation/fundraising/donor records

5. Research material or publications

6. Other

U. State guard records

(This section is blank.)

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V. Tax records

(This section is blank.)

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W. Vital Statistics

Vital records are confidential and can only be disclosed in accordance with the statute.  A.R.S. § 36-342; see Schoeneweis, 223 Ariz. at 174-75, 221 P.3d at 53-54 (determining that death certificates cannot be released to the general public).  A “vital record” is defined as either “a registered birth certificate or a registered death certificate.”  A.R.S. § 36-301(34).

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1. Birth certificates

(This section is blank. See the point above.)

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2. Marriage and divorce

(This section is blank. See the point above.)

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3. Death certificates

(This section is blank. See the point above.)

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4. Infectious disease and health epidemics

(This section is blank. See the point above.)

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IV. Procedure for obtaining records

(This section is blank. See the subpoints below.)

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A. How to start

(This section is blank. See the subpoints below.)

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1. Who receives a request?

Requests to inspect public records should be directed to the public “officer” who maintains custody of the documents.  While some agencies may have freedom of information officers assigned to disclosure requests, it is advisable also to direct such requests to the “person elected or appointed to hold any elective or appointive office of any public body and any chief administrative officer, head, director, superintendent or chairman of any public body.”  A.R.S. § 39-121.01(A)(1).

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2. Does the law cover oral requests?

The Arizona Public Records Law no longer requires the submission of a written request for “non-commercial” matters.
If a request is denied, the person should submit a written request for access to the documents to the head of the applicable agency.

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3. Required contents of a written request

4. Can the requester choose a format for receiving records?

5. Availability of expedited processing

B. How long to wait

Since the Arizona Public Records Law mandates that “[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,” the law creates a presumption in favor of immediate access to the documents.  A.R.S. § 39-121A.R.S. § 39-121.01(E) also provides that “[a]ccess to a public record is deemed denied if a custodian fails to promptly respond to a request for production of a public record.”

“Although Arizona law requires that the documents be promptly furnished, it does not specify a specific number of days from the request by which time a public body must furnish the documents.”  Phoenix New Times, 217 Ariz. at 538, 177 P.3d at 280.  Courts, therefore, have relied on a dictionary definition of “promptly” to require that public records be produced “at once or without delay.”  West Valley View, 216 Ariz. at 230, 165 P.3d at 208.  But they recognize that “whether a government agency’s response to a wide variety of document requests was sufficiently prompt will ultimately be dependent upon the facts and circumstances of each request.”  Phoenix New Times, 217 Ariz. at 538, 177 P.3d at 280 (citation and internal quotation marks omitted); but see id. at 541, 177 P.3d at 283 (noting that “evidence of inattentiveness on the part of the public body does not establish the promptness of a response”).  Some requests will require more time for the custodian to locate the records or to review and determine whether certain information should be deleted from them.  In a recent case, the Court of Appeals held that the State taking 135 days to respond to a public records request was not prompt where the State failed to provide “a legally sufficient reason for the delay.”  Lunney v. Arizona, No. 1 CA-CV 16-0457, slip op. at 14 (Ct. App. Dec. 7, 2017).

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1. Statutory, regulatory or court-set time limits for agency response

(This section is blank. See the point above.)

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2. Informal telephone inquiry as to status

(This section is blank. See the point above.)

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3. Is delay recognized as a denial for appeal purposes?

Yes.  See Phoenix New Times, 217 Ariz. at 538, 177 P.3d at 280 (stating the failure to promptly produce records in response to a request constitutes a denial of access to public records and gives the superior court discretion to award attorneys’ fees).

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4. Any other recourse to encourage a response

(This section is blank. See the point above.)

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C. Administrative appeal

There is no requirement that an administrative appeal be submitted prior to the initiation of a lawsuit.

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1. Time limit to file an appeal

2. To whom is an appeal directed?

 (This section is blank. See the subpoints below.)

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3. Fee issues

(This section is blank. See the point above.)

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4. Contents of appeal

5. Waiting for a response

(This section is blank. See the point above.)

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6. Subsequent remedies

(This section is blank. See the point above.)

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D. Additional dispute resolution procedures

1. Attorney General

2. Ombudsperson

3. Other

E. Court action

1. Who may sue?

“Any person who has requested to examine or copy public records pursuant to this article, and who has been denied access to or the right to copy such records, may appeal the denial through a special action in the superior court, pursuant to the rules of procedure for special actions against the officer or public body.”  A.R.S. § 39-121.02(A).

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2. Priority

(This section is blank. See the point above.)

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3. Pro se

(This section is blank. See the point above.)

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4. Issues the court will address

(This section is blank. See the subpoints below.)

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a. Denial

(This section is blank. See the point above.)

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b. Fees for records

(This section is blank. See the point above.)

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c. Delays

(This section is blank. See the point above.)

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d. Patterns for future access (declaratory judgment)

(This section is blank. See the point above.)

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5. Pleading format

(This section is blank. See the point above.)

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6. Time limit for filing suit

(This section is blank. See the point above.)

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7. What court?

(This section is blank. See the point above.)

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8. Burden of proof

9. Judicial remedies available

10. Litigation expenses

a. Attorney fees

Before it was amended in 2006, A.R.S. § 39-121.02(B) provided for an award of attorneys’ fees against the records custodian if the custodian’s actions were “arbitrary, capricious, or in bad faith.”  The current statute provides that “[t]he court may award attorney fees and other legal costs that are reasonably incurred in any action under this article if the person seeking public records has substantially prevailed.”  A.R.S. § 39-121.02(B).  Accordingly, attorneys’ fees and costs can now be assessed against any non-prevailing party.  Arpaio v. Citizen Publ’g Co., 221 Ariz. 130, 133, 211 P.3d 8, 11 (Ct. App. 2008).  Specifically, the statute “does not prohibit a trial court from requiring a party other than the custodian of the requested records to pay attorney fees to the prevailing party.  The trial court may require parties adverse to the requesting party to pay that party’s attorney fees if the requesting party substantially prevails.”  Id. at 134, 211 P.3d at 12.

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b. Court and litigation costs

(This section is blank. See the point above.)

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11. Fines

12. Other penalties

13. Settlement, pros and cons

F. Appealing initial court decisions

1. Appeal routes

(This section is blank. See the point above.)

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2. Time limits for filing appeals

(This section is blank. See the point above.)

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3. Contact of interested amici

(This section is blank. See the point above.)

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G. Addressing government suits against disclosure

Open Meetings

(This section is blank. See the subpoints below.)

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I. Statute - basic application

(This section is blank. See the subpoints below.)

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A. Who may attend?

“All persons so desiring shall be permitted to attend and listen to the deliberations and proceedings” of any public meeting.  A.R.S. § 38-431.01(A).  The Open Meetings Law (“OML”), however, does not provide for active public participation in the meeting.  Ariz. Att’y Gen. Op. Nos. I84-133, I83-049.

Meetings may not be conducted in a language (e.g., Navajo) if its use prevents the public from understanding the business of the meeting.  Ariz. Att’y Gen. Op. No. I84-133.

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B. What governments are subject to the law?

The OML applies to the state as well as “all political subdivisions of the state” which includes without limitation “all counties, cities and towns, school districts and special districts.”  A.R.S. § 38-431(5) (emphasis added).

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1. State

(This section is blank. See the point above.)

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2. County

(This section is blank. See the point above.)

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3. Local or municipal

(This section is blank. See the point above.)

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C. What bodies are covered by the law?

The Arizona OML applies to “any public body.”  A.R.S. § 38-431.01(A).

“Public body” is defined as:

[T]he legislature, all boards and commissions of this state or political subdivisions, all multimember governing bodies of departments, agencies, institutions and instrumentalities of the state or political subdivisions, including without limitation all corporations and other instrumentalities whose boards of directors are appointed or elected by the state or political subdivision.  Public body includes all quasi-judicial bodies and all standing, special or advisory committees or subcommittees of, or appointed by, the public body.

A.R.S. § 38-431(6).  What constitutes a “public body” is fairly expansive and may turn on unique facts or circumstances.  For example, what constitutes “institutions and instrumentalities of this state or political subdivision” might depend heavily on the relationship between the body and the political subdivision.

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1. Executive branch agencies

Agencies headed by a single director are not subject to the OML because there is no multi-member body making decisions.  Decisions are made by the director or Governor.  See Ariz. Att’y Gen. Op. No. 75-7.

But if the Governor or agency head appoints a committee or board (see A.R.S. § 38-431(1)), there is debate as to whether any meeting by that body is a public meeting.  See Ariz. Att’y Gen. Op. No. 75-7. Attorney General Opinions conflict on this issue.  Compare Ariz. Att’y Gen. Op. No. I90-013 (advisory committee appointed by Governor subject to OML), with Ariz. Att’y Gen. Op. No. I92-007 (advisory committee appointed by Governor not subject to OML).

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a. What officials are covered?

(This section is blank. See the point above.)

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b. Are certain executive functions covered?

(This section is blank. See the point above.)

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c. Are only certain agencies subject to the act?

(This section is blank. See the point above.)

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2. Legislative bodies

The OML generally applies to the Legislature.  A.R.S. § 38-431(6).  But the OML does not apply to any “political caucus”—i.e., the consideration of party policy with respect to a particular legislative issue without reaching a collective decision, promise or commitment.  A.R.S. § 38-431.08(A)(1). Attorney General Opinions conflict on this issue.  Compare Ariz. Att’y Gen. Op. No. I90-013 (advisory committee appointed by Governor subject to OML), with Ariz. Att’y Gen. Op. No. I92-007 (advisory committee appointed by Governor not subject to OML).

Conference committees of the legislature must be open to the public but need not follow the notice and minute requirements of the OML.  A.R.S. § 38-431.08(A)(2).

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3. Courts

Judicial proceedings are not covered by the OML.  A.R.S. § 38-431.08(A)(1).

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4. Nongovernmental bodies receiving public funds or benefits

Arizona does not tie receipt of public funds directly to applicability of the OML.

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5. Nongovernmental groups whose members include governmental officials

The OML may apply depending on a variety of factors such as (a) the group's function or (b) who appointed the members and how they were appointed.

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6. Multi-state or regional bodies

The OML may apply depending on a variety of factors such as (a) the group's function or (b) who appointed the members and how they were appointed.

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7. Advisory boards and commissions, quasi-governmental entities

The OML applies to “all standing, special or advisory committees or subcommittees of, or appointed by the public body.”  A.R.S. § 38-431(6).

The OML also applies to committees even if the committee members are not members of the public body.  Ariz. Att’y Gen. Op. No. I80-202.  “Advisory committees” are defined as “any entity, however designated, that is officially established, on motion and order of a public body or by the presiding officer of the public body, and whose members have been appointed for the specific purpose of making a recommendation concerning a decision to be made or considered or a course of conduct to be taken or considered by the public body.”  A.R.S. § 38-431(1).

OML applies to a quasi-judicial body, which is “a public body, other than a court of law, possessing the power to hold hearings on disputed matters between a private person and a public agency and to make decisions in the general manner of a court regarding such disputed claims.”  A.R.S. § 38-431(7).

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8. Other bodies to which governmental or public functions are delegated

“Institutions” or “instrumentalities” of a public body, including without limitation “all corporations and other instrumentalities whose boards of directors are appointed or elected by the state or political subdivision” are subject to the OML.  A.R.S. § 38-431(6) (emphasis added).  To be an “institution,” the entity must be “a creation of the law itself, . . . rather [than] the creation of a group of private individuals acting together as authorized by Arizona’s statutes . . . .”  Prescott Newspapers, Inc.  v. Yavapai Cmty. Hosp. Ass'n, 163 Ariz. 33, 39, 785 P.2d 1221, 1227 (Ct. App. 1989).  An “instrumentality” must be “something that serves as an intermediary or agent through which one or more functions of a controlling force are carried out: a part, organ or subsidiary branch esp. of a governing body.”  Id. (quoting Webster’s Third New International Dictionary 1172); see Ariz. Att’y Gen. Op. No. I07-001 (finding the Board of Trustees appointed to administer the Northern Arizona Employees Benefits Trust is an instrumentality of the participating political subdivisions and therefore falls within the definition of a public body).

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9. Appointed as well as elected bodies

As long as they fall within the definition of a public body, both appointed and elected bodies must comply with the OML. For example, the OML applies to the Finance Committee of the Board of Regents, Ariz. Att’y Gen. Op. No. I78-285, as well as the board of trustees of an employees’ benefit-trust created by a school district board, Ariz. Att’y Gen. Op. No. I83-018.

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D. What constitutes a meeting subject to the law

“All meetings” of public bodies, including “deliberations and proceedings,” are subject to the OML.  A.R.S. § 38-431.01(A).  But “a communication with the media that may [subsequently] reach a quorum of the board’s members is not a ‘gathering’ of the public body, and, for that reason, it is not a meeting.”  Ariz. Att’y Gen. Op. No. I07-013.

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1. Number that must be present

“Meeting” is defined as “the gathering, in person or through technological devices, of a quorum of members of a public body at which they discuss, propose or take legal action, including any deliberations by a quorum with respect to such action.”  A.R.S. § 38-431(4).

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a. Must a minimum number be present to constitute a "meeting"?

The OML does not apply if a quorum is not present.

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b. What effect does absence of a quorum have?

Discussions and deliberations between less than a quorum, when used to circumvent the purposes of the OML, would constitute a violation of the OML. Ariz. Att’y Gen. Op. No. 75-8.

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2. Nature of business subject to the law

(This section is blank. See the subpoints below.)

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a. "Information gathering" and "fact-finding" sessions

“Information gathering” and “fact-finding” sessions may be covered by the OML if they would foreseeably aid in or require a decision by the body (i.e. constitute a “deliberation”). Ariz. Att’y Gen. Op. No. I96-012.

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b. Deliberation toward decisions

“Deliberations” are expressly included.  A.R.S. §§ 38-431(4); 38-431.01(A).

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3. Electronic meetings

A “meeting” may occur in person or by using technological devices.  A.R.S. § 38-431(4).

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a. Conference calls and video/Internet conferencing

A meeting for purposes of the OML also may occur by telephone or video conferencing.  See Ariz. Att’y Gen. Op. I91-033.

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b. E-mail

“When members of the public body are parties to an exchange of e-mail communications that involve discussions, deliberations or taking legal action by a quorum of the public body concerning a matter that may foreseeably come before the public body for action, the communications constitute a meeting through technological devices under the OML.”  Ariz. Att’y Gen. Op. I05-004.

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c. Text messages

The same reasoning that applies to email communications in Section I(D)(3)(b) above would apply to text messages as well.

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d. Instant messaging

The same reasoning that applies to email communications in Section I(D)(3)(b) above would apply to instant messages as well.

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e. Social media and online discussion boards

The same reasoning that applies to email communications in Section I(D)(3)(b) above would apply to social media and online discussion boards as well.

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E. Categories of meetings subject to the law

(This section is blank. See the subpoints below.)

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1. Regular meetings

(This section is blank. See the subpoints below.)

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a. Definition

As noted above, “meeting” means “the gathering, in person or through technological devices, of a quorum of members of a public body at which they discuss, propose or take legal action, including any deliberations by a quorum with respect to such action.”  A.R.S. § 38-431(4).

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b. Notice

Other than an actual emergency, the notice of a meeting must be posted at least 24 hours in advance.  A.R.S. § 38-431.02(C).  “The twenty-four hour period includes Saturdays if the public has access to the physical posted location in addition to any website posting, but excludes Sundays and other holidays prescribed in section 1-301.”  Id.

A meeting can be recessed and resumed with less notice than 24 hours if proper notice of meeting had been given and, if prior to recessing, “notice is publicly given as to the time and place of the resumption of the meeting or the method by which notice shall be publicly given.”  A.R.S. § 38-431.02(E).

“A public body that intends to meet for a specified calendar period, on a regular day, date or event during the calendar period, and at a regular place and time, may post public notice of the meetings at the beginning of the period.”  A.R.S. § 38-431.02(F).

Notice must be given to members of the public body and the general public.  A.R.S. § 38-431.02(C).

Notice for most public bodies must be provided as follows:

(a) Conspicuously post a statement on their website stating where all public notices of their meetings will be posted, including the physical and electronic locations, and shall give additional public notice as is reasonable and practicable as to all meetings.

(b) Post all public meeting notices on their website and give additional public notice as is reasonable and practicable to all meetings.  A technological problem or failure that either prevents the posting of public notices on a website or that temporarily or permanently prevents the use of all or part of the website does not preclude the holding of the meeting for which the notice was posted if the public body complies with all other public notice requirements required by this section.

A.R.S. § 38-431.02(A)(1), (2), and (4).  Special districts formed pursuant to title 48 may comply with these requirements.  A.R.S. § 38-431.02(A)(3).

Notice “shall include an agenda of the matters to be discussed or decided at the meeting or information on how the public may obtain a copy of such an agenda.”  A.R.S. § 38-431.02(G).

Agendas “shall list the specific matters to be discussed, considered or decided at the meeting.”  A.R.S. § 38-431.02(H).  They must be available at least 24 hours before the meeting except in the case of an actual emergency.  A.R.S. § 38-431.02(G).

Public bodies may only discuss, consider or decide those “matters listed on the agenda and other matters related thereto.”  A.R.S. § 38-431.02(H).  Nothing can be added to an agenda once a meeting has begun, not even by a majority vote of the public body (except in the case of an actual emergency).  Ariz. Att’y Gen. Op. No. I79-192.

In cases of actual emergencies, however, matters not listed on the agenda can be discussed, considered, and decided at the public meeting.  A.R.S. § 38-431.02(J).  Moreover, the presiding officer or a member of the public body may summarize current events without listing the specific matters on the agenda, provided the summary is listed and the public body does not discuss or take legal action on any matter not properly noticed.  A.R.S. § 38-431.02(H).  In addition, public bodies also may make open calls to the public to discuss matters that fall within their jurisdiction.  A.R.S. § 38-431.01(H).

Other than challenges to the validity of executive sessions, “the burden of proving a violation of the open meeting law generally is on the party asserting the violation.”  City of Prescott v. Town of Chino Valley, 166 Ariz. 480, 486 n.4, 803 P.2d 891, 897 n.4 (1990).

  1. Penalties:

Arizona law provides for penalties for failure to comply with Notice and Agenda Requirements.

“All legal action transacted by any public body during a meeting held in violation of any provision of [the OML] is null and void” unless properly ratified by the public body.  A.R.S. § 38-431.05(A) (emphasis added); see Cooper v. Ariz. W. Coll. Dist. Governing Bd., 125 Ariz. 463, 610 P.2d 465 (Ct. App. 1980); Ariz. Att’y Gen. Op. No. I79-045. But see Ariz. Att’y Gen Op. No. I80-001 (determining that “a violation of the OML during the meeting with respect to a single agenda item does not render all legal action taken with respect to other agenda items null and void”).

A technical violation or a “minor deviation,” however, will not nullify all business undertaken at a meeting when there is no demonstrated prejudicial effect on the complaining party and the meeting complies with the intent of OML.  Karol v. Bd. of Educ. Trustees., Florence Unified Sch. Dist.  No. One., 122 Ariz. 95, 98, 593 P.2d 649, 652 (1979); see Ahnert v. Sunnyside Unified Sch. Dist. No. 12, 126 Ariz. 473, 475, 616 P.2d 933, 935 (Ct. App. 1980).  In addition, a matter that was inappropriately decided at an executive session may be corrected by a formal vote at a public meeting that complies with the OML.  See Valencia v. Cota, 126 Ariz. 555, 557, 617 P.2d 63, 65 (Ct. App. 1980).

For any violation of the OML, the court may (1) award attorneys’ fees and costs in favor of plaintiff and against the public body, (2) impose up to $500 in civil penalties against the person violating or knowingly aiding, agreeing to aid, or attempting to aid in the violation of the OML, and (3) remove the offending public officer from office and assess the officer and/or any person who knowingly aids, agrees to aid, or attempts to aid the officer with all costs and attorneys’ fees awarded to the plaintiff.  A.R.S. § 38-431.07(A).

  1. Ratification of actions done in violation of open meetings law:

Legal actions violating OML are usually null and void.  A.R.S. § 38-431.05(A); see, e.g., Thurston v. City of Phoenix, 157 Ariz. 343, 345, 757 P.2d 619, 621 (Ct. App. 1988) (voiding otherwise lawful action taken by the city because the action was not on the meeting’s agenda).

A public body, however, may ratify any legal action taken in violation of the OML by complying with the following requirements:

  1. Ratification shall take place at a public meeting within thirty days after discovery of the violation or after such discovery should have been made by the exercise of reasonable diligence.
  2. The notice for the meeting shall include a description of the action to be ratified, a clear statement that the public body proposes to ratify a prior action and information on how the public may obtain a detailed written description of the action to be ratified.
  3. The public body shall make available to the public a detailed written description of the action to be ratified and all deliberations, consultations and decisions by members of the public body that preceded and related to such action.  The written description shall also be included as part of the minutes of the meeting at which ratification is taken.
  4. The public body shall make available to the public the notice and detailed written description required by this section at least seventy-two hours in advance of the public meeting at which the ratification is taken.

A.R.S. § 38-431.05(B).  A judicial determination that the public body took legal action in violation of the OML triggers the 30-day period for ratification.  See Tanque Verde Unified Sch. Dist. No. 13 of Pima Cty. v. Bernini, 206 Ariz. 200, 208-10, 76 P.3d 874, 882-84 (Ct. App. 2003).

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c. Minutes

“All public bodies shall provide for the taking of written minutes or a recording of all their meetings, including executive sessions.”  A.R.S. § 38-431.01(B).

Minutes for regular meetings, not including executive sessions, must include at least:

  1. The date, time and place of the meeting.
  2. The members of the public body recorded as either present or absent.
  3. A general description of the matters considered.
  4. An accurate description of all legal actions proposed, discussed or taken, and the names of members who propose each motion.  The minutes shall also include the names of the persons, as given, making statements or presenting material to the public body and a reference to the legal action about which they made statements or presented material.

A.R.S. § 38-431.01(B).  Minutes must be sufficiently detailed to comply with statute but verbatim transcripts are not necessary.  Ariz. Att’y Gen. Op. No. I83-006.

“The minutes or a recording of a meeting shall be available for public inspection three working days after the meeting, except as otherwise specifically provided by this article.”  A.R.S. § 38-431.01(D); see A.R.S. § 38-431.01(E) (providing specific time requirements for public bodies of cities and towns with populations of more than 2,500 persons).

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2. Special or emergency meetings

(This section is blank. See the subpoints below.)

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a. Definition

Emergency meetings require an “actual emergency.”  A.R.S. § 38-431.02(D), (J).  The Arizona Court of Appeals requires that the emergency be “real” and “existing in fact,” not “nominal” or “‘constructive’ or merely ‘possible’ or ‘conceivable.’”  Carefree Improvement Ass'n v. City of Scottsdale, 133 Ariz. 106, 113, 649 P.2d 985, 992 (Ct. App. 1982).  An “emergency” is “an unforeseen combination of circumstances which call for immediate action.”  Id.

Emergency executive sessions may also be held.  A.R.S. § 38-431.02(D).

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b. Notice requirements

In the case of an actual emergency, the meeting “may be held on such notice as is appropriate to the circumstances.”  A.R.S. § 38-431.02(D).  But if an emergency session is conducted at a previously scheduled meeting, “the public body must post a public notice within twenty-four hours declaring that an emergency session has been held.”  Id.

The public body must provide public notice that the emergency session was held.  A.R.S. § 38-431.02(D).

This public notice must be properly posted (like a notice for a regular meeting) and must include an agenda or, if an executive session, a general description of the matters considered.  A.R.S. § 38-431.02(A), (D), (H), (I).

The agenda for an emergency meeting must include the same information as required for a regular meeting agenda.  A.R.S. § 38-431.02(D), (H), (I).

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c. Minutes

Minutes must be taken for an emergency meeting.  A.R.S. § 38-431.01(B).

Minutes must also include a statement setting forth the reasons why the emergency meeting was necessary.  A.R.S. § 38-431.02(J).

These minutes are a public record.  See A.R.S. § 38-431.01(D).

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3. Closed meetings or executive sessions

The public may be excluded from executive sessions.  See A.R.S. § 38-431(2) (defining “executive session” as “a gathering of a quorum of members of a public body from which the public is excluded for one or more of the reasons prescribed in section 38-431.03”).  In addition to members of the public body, specific employees and appointees, and the auditor general, “only individuals whose presence is reasonably necessary in order for the public body to carry out its executive session responsibilities may attend the executive session.”  Id.

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a. Definition

Executive sessions may only be hold for the following purposes:

  1. Discussion or consideration of employment, assignment, appointment, promotion, demotion, dismissal, salaries, disciplining or resignation of a public officer, appointee or employee of any public body, except that, with the exception of salary discussions, an officer, appointee or employee may demand that the discussion or consideration occur at a public meeting. . . .
  2. Discussion or consideration of records exempt by law from public inspection, including the receipt and discussion of information or testimony that is specifically required to be maintained as confidential by state or federal law.
  3. Discussion or consultation for legal advice with the attorney or attorneys of the public body.
  4. Discussion or consultation with the attorneys of the public body in order to consider its position and instruct its attorneys regarding the public body’s position regarding contracts that are the subject of negotiations, in pending or contemplated litigation or in settlement discussions conducted in order to avoid or resolve litigation.
  5. Discussions or consultations with designated representatives of the public body in order to consider its position and instruct its representatives regarding negotiations with employee organizations regarding the salaries, salary schedules or compensation paid in the form of fringe benefits of employees of the public body.
  6. Discussion, consultation or consideration for international and interstate negotiations or for negotiations by a city or town, or its designated representatives, with members of a tribal council, or its designated representatives, of an Indian reservation located within or adjacent to the city or town.
  7. Discussions or consultations with designated representatives of the public body in order to consider its position and instruct its representatives regarding negotiations for the purchase, sale or lease of real property.

A.R.S. § 38-431.03(A); see City of Prescott, 166 Ariz. at 483, 803 P.2d at 894 (“This section is intended to establish an equilibrium between the public’s desire for access and the governmental agency’s need to act in private, short of reaching a collective decision, commitment or promise.”) (citation and internal quotation marks omitted); see also Shelby Sch. v. Ariz. State Bd. of Educ., 192 Ariz. 156, 167, 962 P.2d 230, 241 (Ct. App. 1998) (determining that the board appropriately deliberated over confidential credit records in an executive session).

When the validity of an executive session is challenged, the burden shifts to the public body to prove that the executive session did not violate the OML.  Fisher v. Maricopa Cty. Stadium Dist., 185 Ariz. 116, 122, 912 P.2d 1345, 1351 (Ct. App. 1995).

“Legal action involving a final vote or decisions shall not be taken at an executive session, except that the public body may instruct its attorneys or representatives as provided in subsection A, paragraphs 4, 5 and 7 of this section.”  A.R.S. § 38-431.03(D).  A public body cannot hold an executive session merely because its attorney is present if the discussion is not for legal advice.  City of Prescott, 166 Ariz. at 485, 803 P.2d at 896.  “[A] consultation between a governmental entity and its attorney for legal advice is not legal action involving a final vote or decision, and . . . a governmental entity may therefore meet in executive session with its attorney to receive legal advice.”  Id. (internal quotation marks omitted). “However, once the members of the public body commence any discussion regarding the merits of enacting the legislation or what action to take based upon the attorney’s advice, the discussion moves beyond the realm of legal advice and must be open to the public.”  Id.; see Fisher, 185 Ariz. at 124, 912 P.2d at 1353 (“It is the debate over what action to take, including the pros and cons and policy implications, of competing alternative courses of action, that must take place in public.”).

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b. Notice requirements

“[N]otice of executive sessions shall be required to include only a general description of the matters to be considered.”  A.R.S. § 38-431.02(I).  In Shelby School, the court found that a motion containing broad language similar to A.R.S. § 38-431.03(A)(2) and (3) satisfied the notice requirements of A.R.S. § 38-431.02(I).  192 Ariz. at 167-68, 962 P.2d at 241-42.  Except for cases of actual emergencies, “a public body shall not discuss any matter in an executive session which is not described in the notice of the executive session.”  A.R.S. § 38-431.03(E).

Other than an actual emergency, the notice of a meeting must be posted at least 24 hours in advance.  A.R.S. § 38-431.02(C).  “The twenty-four hour period includes Saturdays if the public has access to the physical posted location in addition to any website posting, but excludes Sundays and other holidays prescribed in section 1-301.”  Id.

A meeting can be recessed and resumed with less notice than 24 hours if proper notice of meeting had been given and, if prior to recessing, “notice is publicly given as to the time and place of the resumption of the meeting or the method by which notice shall be publicly given.”  A.R.S. § 38-431.02(E).

Notice of executive sessions must be given to the members of the public body and the general public.  A.R.S. § 38-431.02(B).

The same posting requirements as for regular meetings must be followed for executive sessions.  A.R.S. § 38-431.02(A).

An agenda is also required for an executive session and must “provide more than just a recital of the statutory provisions authorizing the executive session, but need not contain information that would defeat the purpose of the executive session, compromise the legitimate privacy interests of a public officer, appointee or employee or compromise the attorney-client privilege.”  A.R.S. § 38-431.02(I).

The notice must include “the provision of law authorizing the executive session.”  A.R.S. § 38-431.02(B).

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c. Minutes

Written minutes or a recording of the session are required for all executive sessions by public bodies. A.R.S. § 38-431.01(B).  But these minutes, as well as any discussions, are confidential subject to specific exemptions.  A.R.S. § 38-431.03(B).

Executive session minutes must include the following:

  1. The date, time and place of the meeting.
  2. The members of the public body recorded as either present or absent.
  3. A general description of the matters considered.
  4. An accurate description of all legal actions proposed, discussed or taken, and the names of members who propose each motion. The minutes shall also include the names of the persons, as given, making statements or presenting material to the public body and a reference to the legal action about which they made statements or presented material.

A.R.S. § 38-431.01(B).  In addition, the minutes must provide “an accurate description of all instructions given” to its attorneys or representatives and “such other matters as may be deemed appropriate by the public body.”  A.R.S. § 38-431.01(C).

Minutes of executive sessions are kept confidential subject to specific exceptions.  A.R.S. § 38-431.03(B).  In some instances, however, “the interest [of] full disclosure warrants the revelation of information pertinent to [a] decision,” even if the information comes from the proceedings of an executive session or might otherwise be confidential.  Shelby Sch., 192 Ariz. at 168, 962 P.2d at 242.

The public body can disclose the minutes to members of the public body who met in the session, the officers, appointees, or employees who were the subject of consideration, the auditor general, and the Attorney General or county attorney who are investigating alleged violations of the OML.  A.R.S. § 38-431.03(B); see Picture Rocks Fire Dist. v. Updike, 145 Ariz. 79, 81, 699 P.2d 1310, 1312 (Ct. App. 1985) (explaining that executive session minutes may be given to a member of the public body who was absent from the executive session).  The disclosure of executive session information to any of these parties does not waive any attorney-client privilege.  A.R.S. § 38-431.03(F).

In an action challenging an executive session’s validity, “[a] court may review in camera the minutes of the executive session, and if the court in its discretion determines that the minutes are relevant and that justice so demands, the court may disclose to the parties or admit in evidence part or all of the minutes.”  A.R.S. § 38-431.07(C).  “Any court that reviews executive session information shall take appropriate action to protect privileged information.”  A.R.S. § 38-431.03(F).

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d. Requirement to meet in public before closing meeting

A public body may hold an executive session only “[u]pon a public majority vote of the members constituting a quorum.”  A.R.S. § 38-431.03(A) (emphasis added); see Shelby Sch., 192 Ariz. at 167, 962 P.2d at 241 (finding the Board of Education’s deliberations in an executive session followed by a final decision in an open meeting complied with the OML).

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e. Requirement to state statutory authority for closing meetings before closure

No such requirement.

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f. Tape recording requirements

There is no requirement that the executive sessions be tape recorded.

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F. Recording/broadcast of meetings

“All or any part of a public meeting of a public body may be recorded by any person in attendance by means of a tape recorder, or camera or any other means of sonic reproduction, provided that there is no active interference with the conduct of the meeting.”  A.R.S. § 38-431.01(F).

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1. Sound recordings allowed

(This section is blank. See the point above.)

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2. Photographic recordings allowed

(This section is blank. See the point above.)

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G. Access to meeting materials, reports and agendas

Agendas must be available to the public at least 24 hours before the meeting.  A.R.S. § 38-431.02(G).  Meeting materials and reports are public records pursuant to A.R.S. § 39-121 et seq.

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H. Are there sanctions for noncompliance?

For any violation of the OML, the court may (1) award attorneys’ fees and costs in favor of plaintiff and against the public body, (2) impose up to $500 in civil penalties against the person violating or knowingly aiding, agreeing to aid, or attempting to aid in the violation of the OML, and (3) remove the offending public officer from office and assess the officer and/or any person who knowingly aids, agrees to aid, or attempts to aid the officer with all costs and attorneys’ fees awarded to the plaintiff.  A.R.S. § 38-431.07(A).  Any assessed civil penalties will be deposited in the public body's general fund.  Id.

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(This section is blank. See the subpoints below.)

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A. Exemptions in the open meetings statute

(This section is blank. See the subpoints below.)

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1. Character of exemptions

Not specified.

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2. Description of each exemption

The OML does not apply to the following:

  1. Any judicial proceeding of any court or any political caucus of the legislature.
  2. Any conference committee of the legislature, except that all such meetings shall be open to the public.
  3. The commissions on appellate and trial court appointments and the commission on judicial qualifications.
  4. Good cause exception determinations and hearings conducted by the board of fingerprinting pursuant to sections 41-619.55 and 41-619.57.

A.R.S. § 38-431.08(A).  Moreover, “[e]ither house of the legislature may adopt a rule or procedure, pursuant to article IV, part 2, section 8, Constitution of Arizona, to provide an exemption to the notice and agenda requirements of [the OML] or to allow standing or conference committees to meet through technological devices rather than only in person.”  A.R.S. § 38-431.08(D).

Arizona's OML does not include any provision for closure of meetings “in the public interest” or for “discretionary reasons.”

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B. Any other statutory requirements for closed or open meetings

Closed Meeting Requirements:

  1. Student disciplinary, suspension or expulsion proceedings can be done in executive session, unless, subject to some exceptions, the parent or guardian wants an open meeting.  A.R.S. § 15-843(A), (G).  Notice and minutes are required.  A.R.S. § 15-843(A).
  2. A school board’s review of teacher decision either to promote or retain (i.e., flunking) a student in elementary school or to pass or fail a student in a high school course can be done in an executive session, unless the parent, guardian, or emancipated student wants an open meeting. A.R.S. § 15-342(11).
  3. Meetings of advisory committees of the Arizona Board of Regents may be held in executive sessions, except that a student whose records are being discussed may request an open meeting.  A.R.S. § 15-1624.
  4. Emergency ringside meetings by Arizona State Boxing Commission are exempt from the OML. A.R.S. § 5-223(B).
  5. Conference call meetings of the board of trustees for the Public Safety Personnel Retirement System “that are held for investment purposes only” are not subject to the OML, except that the minutes shall be available for public inspection within 24 hours after the meeting. A.R.S. § 38-848(H).  The board must ratify all legal actions taken during these conference calls at the next regular public meeting.  Id.
  6. A subcommittee of the military family relief advisory committee may meet in executive session without providing advance notice.  A.R.S. § 41-608.04(E).  If notice is provided, the full advisory committee can meet in executive session “to review and evaluate applications or review recommendations of the subcommittee.”  Id.
  7. “The constitutional defense council shall brief the joint legislative budget committee in executive session regarding contracts for legal representation over the amount of fifty thousand dollars.”  A.R.S. § 41-401(L).
  8. “[T]he director of the department of administration shall meet with and review for the joint legislative budget committee in executive session the planned contribution strategy for each health plan, including indemnity health insurance, hospital and medical service plans, dental plans and health maintenance organizations.”  A.R.S. § 38-658(A).
  9. The Agricultural Employment Relations Board may meet in executive session by majority vote.  A.R.S. § 23-1386(G).
  10. Hearings may be by closed at the discretion of the director of the Department of Insurance, “but the hearing shall be open to the public if so requested in writing by any principal party to the hearing.”  A.R.S. § 20-164(A).
  11. Informal conferences of advisory committees to the Board of Technical Registration are confidential and closed to the public.  A.R.S. § 32-129(C).
  12. Meetings of the property and casualty insurance guaranty fund in which any member insurer’s financial condition is discussed are closed to the public.  A.R.S. § 20-671.

Open Meeting Requirements:

  1. The Arizona Corporation Commission’s meeting are “open to the public.”  A.R.S. § 40-102(B).
  2. Before promulgating rules, state agencies must permit public participation by providing an opportunity to submit written statements and, if requested, to present oral testimony. A.R.S. § 41-1023.  A similar requirement is imposed on air pollution control officers for proposed rules or ordinance making actions.  A.R.S. § 49-471.06.
  3. A school board must require that all committee meetings authorized for textbook review and selection are open to the public.  A.R.S. § 15-721(F)(2).
  4. Dental Board’s meetings must be conducted pursuant to the OML.  A.R.S. § 32-1205(B).  In addition, meetings of the Board of Chiropractic Examiners, the Board of Occupational Therapy Examiners, and the Board of Respiratory Care Examiners generally are open to the public.  A.R.S. §§ 32-902(B), 32-3402(D), 32-3503(B).
  5. Other than meetings to interview candidates or to make preliminary selections, meetings of the Ombudsman-Citizens Aide Selection Committee are open to the public.  A.R.S. § 41-1373(C).
  6. Except when reviewing a domestic violence fatality case, the public may attend meetings of the Domestic Violence Fatality Review Teams.  A.R.S. § 41-198(F).
  7. Hearings held as a result of any inspection pertaining to the safety and health of workers exposed to pesticides and any other safety and health issue not covered by the industrial commission are open to the public.  A.R.S. § 3-3107(F).
  8. The public may attend meetings and access records of community based alternative programs for juveniles.  A.R.S. § 8-321(I)(5).
  9. All proceedings of the County Sports Authority are open to the public.  A.R.S. § 11-702(D)(2).
  10. Several statutes contain provisions mandating public access to specific meetings, including (1) the Advisory Council on Indian Health Care (A.R.S. § 36-2902.01(H)); (2) the Merit System Council for Law Enforcement Officers (A.R.S. § 38-1002(D)); (3) the Personnel Board (A.R.S. § 41-781(C)); and (4) board meetings for stadium districts (A.R.S. § 48-4203(D)(2)) and for public health services districts (A.R.S. § 48-5804(A)(2)).
  11. “To ensure transparency, the [Independent Redistricting] Commission must conduct it business ‘in meetings open to the public, with 48 or more hours public notice provided.’”  Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep. Redistricting Comm’n, 220 Ariz. 587, 591, 208 P.3d 676, 680 (2009) (quoting Ariz. Const. art. 4, pt. 2, § 1(12)).
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C. Court mandated opening, closing

When the provisions of the OML are violated, “a court of competent jurisdiction may issue a writ of mandamus requiring that a meeting be open to the public.”  A.R.S. § 38-431.04.

This action is now accomplished through a statutory special action directed at the public body.

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III. Meeting categories - open or closed

(This section is blank. See the subpoints below.)

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A. Adjudications by administrative bodies

Any proceedings by a “quasi-judicial body” consisting of a board of more than one member must comply with the OML.  A.R.S. § 38-431(6)(7).  Proceedings by a single administrative judge do not fall under the OML.  These proceedings may be open or closed depending on the nature and circumstances of the proceeding and the applicable statutes and agency regulations.

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1. Deliberations closed, but not fact-finding

(This section is blank. See the point above.)

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2. Only certain adjudications closed, i.e. under certain statutes

(This section is blank. See the point above.)

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B. Budget sessions

Budget sessions are subject to OML if conducted by a “public body.” Ariz. Att’y Gen. Op. No. I81-058.

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C. Business and industry relations

Business and industry relations are subject to OML if discussed by public body.

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D. Federal programs

A public body may hold an executive session about a federal program, if pertaining to a “discussion, consultation or consideration for international and interstate negotiations.”  See A.R.S. § 38-431.03(A)(6).  The provision, however, does not apply to meetings at which the public body receives recommendations from a federal agency.  Ariz. Att’y Gen. Op. No. I80-159.

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E. Financial data of public bodies

Such discussions are covered by OML unless the information or records are “exempt by law from public inspection.”  A.R.S. § 38-431.03(A)(2).

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

Such discussions are covered unless the information or records are “exempt by law from public inspection.”  A.R.S. § 38-431.03(A)(2).

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G. Gifts, trusts and honorary degrees

Discussions by a public body should fall under OML.

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H. Grand jury testimony by public employees

All grand jury proceedings are closed to the general public.  Ariz. R. Crim. P. 12.4.  Disclosure of information presented to the grand jury is a criminal offense.  A.R.S. § 13-2812.

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I. Licensing examinations

No directly applicable law, but OML should apply to all multi-member licensing boards because the examination is a deliberation with respect to a legal action.  See A.R.S. § 38-431(3), (6).

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J. Litigation, pending litigation or other attorney-client privileges

Any “[d]iscussion or consultation for legal advice with the attorney or attorneys of the public body” can be done in closed executive session. A.R.S. § 38-431.03(A)(3); cf. Fisher v. Maricopa Cty. Stadium Dist., 185 Ariz. 116, 124, 912 P.2d 1345, 1353 (1995) (cautioning that permitting “public bodies to delegate responsibilities to attorneys and then cloak negotiations and executive sessions in secrecy” would frustrate the OML).

Any “[d]iscussion or consultation with the attorneys of the public body in order to consider its position and instruct attorneys regarding the public body’s position regarding contracts that are the subject of negotiations, in pending or contemplated litigation or in settlement discussions conducted in order to avoid or resolve litigation” may be conducted in closed executive session.  A.R.S. § 38-431.03(A)(4).

But “[a] public vote shall be taken before any legal action binds the public body.” A.R.S. § 38-431.03(D).  In addition, “all legal actions [must] be preceded . . . by disclosure of that amount of information sufficient to apprise the public in attendance of the basic subject matter of the action so that the public may scrutinize the action taken during the meeting.”  Karol v. Bd. of Educ., Trs., 122 Ariz. 95, 98, 593 P.2d 649, 652 (1979).

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K. Negotiations and collective bargaining of public employees

(This section is blank. See the subpoints below.)

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1. Any sessions regarding collective bargaining

Negotiations and collective bargaining by at least a quorum of the public body or by a multi-member committee appointed by the public body must comply with the OML.

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2. Only those between the public employees and the public body

But “[d]iscussions or consultations with designated representatives of the public body in order to consider its position and instruct its representatives regarding negotiations with employee organizations regarding the salaries, salary schedules or compensation paid in the form of fringe benefits of employees of the public body” may be done in closed executive sessions.  A.R.S. § 38-431.03(A)(5); see Ariz. Att’y Gen. Op. No. I80-146.

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L. Parole board meetings, or meetings involving parole board decisions

They are subject to OML.  When meetings are held within a prison facility, however, the director of the department of corrections may restrict access in the following ways:

  1. Prohibit, on written findings that are made public within five days of so finding, any person from attending a hearing whose attendance would constitute a serious threat to the life or physical safety of any person or to the safe, secure and orderly operation of the prison.
  2. Require a person who attends a hearing to sign an attendance log.  If the person is over sixteen years of age, the person shall produce photographic identification which verifies the person’s signature.
  3. Prevent and prohibit any articles from being taken into a hearing except recording devices, and if the person who attends a hearing is a member of the media, cameras.
  4. Require that a person who attends a hearing submit to a reasonable search on entering the facility.

A.R.S. § 38-431.08(B).

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M. Patients, discussions on individual patients

Arizona statutes do not specifically exempt from OML requirements any discussions about patients.  Many types of medical records, however, are exempt from public inspection.  E.g., A.R.S. § 12-2292 (“Unless otherwise provided by law, all medical records . . . are privileged and confidential.”).  Moreover, discussion or consideration of records exempt from public inspection may occur in executive session.  A.R.S. § 38-431.03(A)(2).

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N. Personnel matters

A public body may consider in closed executive session any “[d]iscussion or consideration of employment, assignment, appointment, promotion, demotion, dismissal, salaries, disciplining or resignation of a public officer, appointee or employee of any public body, except that, with the exception of salary discussions, an officer, appointee or employee may demand that the discussion or consideration should occur at a public meeting.”  A.R.S. § 38-431.03(A)(1).

Any other personnel matter discussed by a public body should be done in an open meeting.  For example, the formulation of the intention to contract or not to contract with employees must be taken at a public meeting.  See Ahnert v. Sunnyside Unified Sch. Dist. No. 12, 126 Ariz. 473, 475, 616 P.2d 933, 935 (1980); Karol, 122 Ariz. at 96-97, 593 P.2d at 650-51.

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1. Interviews for public employment

(This section is blank. See the point above.)

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2. Disciplinary matters, performance or ethics of public employees

(This section is blank. See the point above.)

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3. Dismissal, considering dismissal of public employees

(This section is blank. See the point above.)

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O. Real estate negotiations

Any “[d]iscussions or consultations with designated representatives of the public body in order to consider its position and instruct its representatives regarding negotiations for the purchase, sale or lease of real property” may occur in closed executive sessions.  A.R.S. § 38-431.03(A)(7).  Although it cannot select the construction site in a closed session, a public body may “discuss its position in executive session before it actually commences negotiating with a land owner or purchaser.”  Tanque Verde Unified Sch. Dist. v. Bernini, 206 Ariz. 200, 208, 76 P.3d 874, 882 (2003).

The actual negotiations may or may not be conducted in public meetings, depending on the entity negotiating on behalf of the public body (i.e., multimember special committee versus single-person attorney or representative).

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P. Security, national and/or state, of buildings, personnel or other

Not expressly exempted from open meetings by any Arizona statute.

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Q. Students, discussions on individual students

Curriculum discussions must be done in open meeting.  Ariz. Att’y Gen. Op. No. I81-060.

See also Section II.B.1, supra.

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IV. Procedure for asserting right of access

(This section is blank. See the subpoints below.)

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A. When to challenge

Arizona’s OML allows legal challenges both before a violation will occur and after a violation has occurred.

Before violation:

A person may bring an action “for the purposes of requiring compliance with, or the prevention of violations of, [the OML] . . . or to determine the applicability of [the OML] to matters or legal actions of the public body.”  A.R.S. § 38-431.07(A).

A person also may seek a writ of mandamus ordering future compliance with the OML if potential violations seem likely.  A.R.S. § 38-431.04.  This is now done through a procedure known as a statutory special action.  See Arizona Rules of Procedure for Special Actions.

After violation: A.R.S. § 38-431.07(A) provides for actions against public bodies and their members who have violated the OML.

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

The OML does not contain any express expedited procedures for reviewing OML actions, but a special statutory action combined with a request for a temporary restraining order or a preliminary injunction would expedite the procedure.

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2. When barred from attending

(This section is blank. See the point above.)

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3. To set aside decision

(This section is blank. See the point above.)

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4. For ruling on future meetings

(This section is blank. See the point above.)

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5. Other

(This section is blank. See the point above.)

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B. How to start

The OML expressly provides that an action may be brought in “the superior court in the county in which the public body ordinarily meets.”  A.R.S. § 38-431.07(A).

No Arizona statute requires or provides for administrative proceedings for resolving OML violations.

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1. Where to ask for ruling

(This section is blank. See the point above.)

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a. Administrative forum

(This section is blank. See the point above.)

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b. State attorney general

(This section is blank. See the point above.)

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c. Court

(This section is blank. See the point above.)

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2. Applicable time limits

(This section is blank. See the point above.)

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3. Contents of request for ruling

(This section is blank. See the point above.)

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4. How long should you wait for a response

(This section is blank. See the point above.)

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5. Are subsequent or concurrent measures (formal or informal) available?

(This section is blank. See the point above.)

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C. Court review of administrative decision

(This section is blank. See the subpoints below.)

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1. Who may sue?

An action may be brought by (1) any person affected by an alleged violation of the OML, (2) the Arizona attorney general, (3) or the county attorney for the county in which the alleged violation occurred.  A.R.S. § 38-431.07(A).

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2. Will the court give priority to the pleading?

The OML does not contain any express expedited procedures for reviewing OML actions. Combining the special action with a request for a temporary restraining order or a preliminary injunction will expedite the procedure.

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3. Pro se possibility, advisability

Due to procedural complexities of the special action and the technical nature of the OML, pro se plaintiffs may run into difficulty.

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4. What issues will the court address?

A court may (1) require a public body and its members comply with OML; (2) prohibit a public body and its members from violating the OML; (3) determine the applicability of the OML to matters or legal actions of the public body; (4) impose civil penalties; (5) assess costs and attorney fees; (6) order the removal of a public officer who acted with intent to deprive the public of information; and/or (7) “order such equitable relief as it deems appropriate in the circumstances.”  A.R.S. § 38-431.07(A).

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a. Open the meeting

(This section is blank. See the point above.)

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b. Invalidate the decision

(This section is blank. See the point above.)

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c. Order future meetings open

(This section is blank. See the point above.)

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5. Pleading format

Special action: This type of action is now the proper procedure to obtain relief previously obtained by writs of certiorari, mandamus or prohibition.  See Rules of Procedure for Special Actions (Ariz. R.P.S.A.).

Special actions regarding OML typically involve situations where the public body has failed to perform a duty required by law as to which it has no discretion.  Ariz. R.P.S.A. 3(a).

Declaratory judgment action: Occasionally such actions are brought by a public body to resolve its duties under the OML.  See Ariz. R. Civ. P. 57.

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6. Time limit for filing suit

See Ariz. R.P.S.A 4(c).

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7. What court?

An action may be brought in “the superior court in the county in which the public body ordinarily meets.”  A.R.S. § 38-431.07(A).

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8. Judicial remedies available

Courts have wide-ranging powers to ensure compliance with the OML.  A.R.S. § 38-431.09 states that “any person or entity charged with the interpretations of [the OML] shall construe [the OML] in favor of open and public meetings.”  See Carefree Imp. Ass’n v. City of Scottsdale, 133 Ariz. 106, 107, 649 P.2d 985, 986 (1982) (noting that, “[i]n construing the open meeting law and the declaration of policy, the language must be liberally construed to effect their objects and to promote justice”) (citation and internal quotation marks omitted).

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9. Availability of court costs and attorney's fees

The court has discretion to “order payment to a successful plaintiff in a suit brought under this section of the plaintiff's reasonable attorney fees, by the defendant state, the political subdivision of the state or the incorporated city or town of which the public body is a part or to which it reports.”  A.R.S. § 38-431.07(A).  In determining whether to assess attorney fees and costs, courts may consider the overall behavior of the public body and its attempt to comply with the spirit of the OML.  See Carefree Imp. Ass’n, 133 Ariz. at 114-15, 649 P.2d at 993-94.

Moreover, the Court may assess a public officer individually with all costs and attorneys fees awarded to plaintiff if it “determines that a public officer with intent to deprive the public of information violated any provision of [the OML].”  A.R.S. § 38-431.07(A).

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10. Fines

A civil penalty not to exceed five hundred dollars may be imposed against a person who violates or knowingly aids in the violation of the OML.  A.R.S. § 38-431.07(A).  Any penalty assessed shall be deposited in the public body’s general fund.  Id.

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11. Other penalties

The Court has discretion to remove a public officer from office if it “determines that a public officer with intent to deprive the public of information violated any provision of [the OML].”  A.R.S. § 38-431.07(A).

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D. Appealing initial court decisions

(This section is blank. See the subpoints below.)

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1. Appeal routes

Special action to appellate court: Special action, however, is not available when “there is an equally plain, speedy, and adequate remedy by appeal.”  Ariz. R.P.S.A. 1(a); see Ariz. R.P.S.A. 8.  Such an appeal should be heard as soon as is necessary to preserve the legal rights of appellant.

Regular appeal: A regular appeal is not an expedited action but may be accelerated by order of the appellate court.

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2. Time limits for filing appeals

Normal timing for appeals is set forth in the Arizona Rules of Civil Appellate Procedure.  Currently, “[a] party must file a notice of appeal under Rule 8 not later than 30 days after the entry of the judgment from which the appeal is taken, except as otherwise provided in this Rule or unless the law provides a different time.”  Ariz. R. Civ. App. P. 9.

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3. Contact of interested amici

If not already involved in the action, the First Amendment Coalition of Arizona Inc. may be interested in participating as an amicus.  The Coalition may be contacted through the authors of this outline.

In addition, the Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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V. Asserting a right to comment

(This section is blank. See the subpoints below.)

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A. Is there a right to participate in public meetings?

Arizona’s OML allows a member of the public to address a public body on any issue within that body’s jurisdiction if an open call to the public has been made during a public meeting.  See A.R.S. §38-431.01(H).

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B. Must a commenter give notice of intentions to comment?

The OML does not contain any express provisions requiring a commenter to notify the public body of his intent to speak at a public meeting.  Members of the public body are prohibited from discussing or taking legal action on matters brought up during an open call unless those matters were properly noticed on the meeting agenda.  See A.R.S. §38-431.01(H).  At the conclusion of the open call, however, “individual members of the public body may respond to criticism made by those who have addressed the public body, may ask staff to review a matter or may ask that a matter be put on a future agenda.”  Id.

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C. Can a public body limit comment?

Yes.  A public body may limit public comment during an open call by imposing reasonable time, place and manner restrictions.  See A.R.S. §38-431.01(H).  “Although it is legally appropriate to stop a speaker who is reasonably perceived as threatening, disorderly, or impeding the fair progress of discussion, public bodies must be cautious not to halt a speaker because of the speaker’s viewpoint.”  Ariz. Att’y Gen. Op. No. I99-006.

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D. How can a participant assert rights to comment?

Please see section A above.

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E. Are there sanctions for unapproved comment?

Arizona’s OML does contain any sanctions for unapproved comment.

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Appendix

(This section is blank.)

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