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Sheriff found liable for attorney's fees in Arizona

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  1. Freedom of Information
An Arizona newspaper is entitled to more than $25,000 in attorney's fees from a county sheriff who sought to stop…

An Arizona newspaper is entitled to more than $25,000 in attorney’s fees from a county sheriff who sought to stop the local prosecutor’s office from releasing public records, an appellate court has found.

Ruling on Thursday in Arpaio v. Citizen Publishing, the Court of Appeals found that Maricopa County Sheriff Joseph Arpaio could not sidestep responsibility for the fees simply because he was not the custodian of the records. State lawmakers allowed for the possibility that a government official could bar a request without being the official keeper of the record in question, Judge J. William Brammer wrote.

According to the opinion, the Tuscon Citizen and Citizen Publishing submitted a request to the Pima County Attorney’s Office last summer for documents related to a civil forfeiture case that Arpaio’s office had originally investigated. Pima County Attorney Barbara LaWall conferred with the sheriff, who wanted the request denied because, he argued, releasing the records would violate his attorney-client privilege with her office.

LaWall in turn filed a declaratory judgment action in court, asking the judge to rule on whether the records should be public and if such a privilege indeed existed between her office and the sheriff.  She named Citizen Publishing and Arpaio.

The trial court found that the records should be public, with a few redactions to protect attorney work product. Arpaio was ordered to pay $25,241 to cover Citizen Publishing’s attorney’s fees.

The sheriff appealed that order, arguing that he could not be ordered to pay the fees since he is not the custodian of the records. Arpaio also claimed the declaratory judgment did not constitute an "action" under the public records law.

The appellate court favored neither argument; it dispatched with the declaratory judgment issue in a footnote, saying in part that the law does not bar a broad definition of "action."

And on the custodian matter, the court did not reach the question of whether Arpaio qualified as a keeper of the records: "Whether a party can be liable for attorney fees under (the statute) does not hinge on whether the party is a custodian of the requested records. . . . The trial court may require parties adverse to the requesting party to pay that party’s attorney fees if the (requester) substantially prevails."

The lower court order was affirmed.