Records must be released in timely fashion, court rules

Feb. 8, 2008  ·   The Arizona Court of Appeals ruled this week that a Maricopa County sheriff’s office did not respond quickly enough to a Phoenix newspaper’s numerous public records requests.

The unanimous three-judge panel held that although the state records law does not specify a concrete time frame for when records must be released, delays of more than 100 days, as in this case, are neither reasonable nor beneficial to those seeking the information.

The Phoenix New Times, an alternative weekly newspaper, has long battled controversial sheriff Joe Arpaio for access to information. The clash escalated last year when the sheriff had two executives of the paper arrested for revealing their own grand jury testimony in an investigation over the newpaper’s articles about the sheriff.

Inattentiveness, personality clashes and a general disregard for replying plagued nearly 10 record requests, which the Phoenix New Times sent in 2004 to the county sheriff’s office, according to the opinion.

“If public entities could be excused from providing public records merely by being inattentive to requests, then access to the records would be easily frustrated,” Judge Murray Snow wrote for the court.

The office didn’t respond until the newspaper filed suit nearly four months after the first request. At that point, the newspaper sued for legal fees related to the delayed responses, which the county superior court initially ruled against since the office did ultimately turn over the documents.

The appeals court, however, ruled otherwise, and remanded the case back to the county superior court to determine whether to award the New Times tens of thousands of dollars in legal fees. The lower court will need to determine two things: that the sheriff’s office “wrongfully denied” access to records and that it acted in “bad faith or an arbitrary or capricious manner in doing so,” according to the state records law.

Steven P. Suskin, the attorney representing the New Times, said he is confident the newspaper will prevail in the lower court.

“We feel very strongly that it was a classic example of bad faith,” Suskin said. “They didn’t give us the records because they didn’t like what we were writing about. We intend to continue to pursue this and recover our fees for having to go through litigation to obtain records.”

The requests ranged from investigative reports about Arpaio’s re-election to contracts between a vending machines company and the office. The articles former Times New reporter John Dougherty wrote on the re-election were unfavorable to Arpaio and prompted the sheriff’s office to ignore the rest of the requests, according to Suskin.

The lower court’s ruling on whether the New Times receives its legal fees could mark a turning point for other media outlets and individuals facing roadblocks to acquiring public records, said Le Templar, president of the Arizona Press Club.

“This decision might encourage people to file more lawsuits,” Templar said. “Without a specific deadline in the law you were just wasting your time and money going to court.”

Templar also noted that since the Arizona’s records act still doesn’t set deadline for agencies to respond or turn over documents, the appeals decision will help build a stronger case against agencies looking to delay record requests in the future, he said.

“This will send a message to government agencies in general that they can’t delay the release of public records just because they don’t like the person who’s asking for them,” Templar said. “That was clearly a pattern in this case.”

(Phoenix New Times v. Arpaio; Media Counsel: Steven P. Suskin, Phoenix, Ariz.) — Amy Harder

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