The public record

              Like most states, and the federal government, Arizona has a public records law ( Title 39) mandating
that all public records be open to inspection and copying. The general policy is that all records required
to be kept under A. R. S. Â  39- 121.01( B) are presumed open to the public for inspection as public re-cords.
Sounds simple enough, right? Not necessarily. Arizona’s public records law is very broad and
application of the law is far from black and white. Consequently, uncertainty and inconsistency among
public bodies is common throughout Arizona. However, with training and the right attitude, government
employees can confidently respond to public record requests and avoid ten of the most common pit-falls.
Pitfall # 10: Failure to have, update, or follow retention schedules
Public bodies have a duty to submit a retention schedule for each type of record to the Director of Ari-zona
State Library, Archives, and Public Records for approval. The retention schedule determines how
long records may be maintained and when records must be destroyed.
Pitfall # 9: Not Knowing what constitutes a public record or “ other matterâ€
A public record is everything created or received by a government agency or employee that relates to
public business ( even if on personal computers!). “ Record†means all books, papers, maps, photo-graphs,
or other documentary materials, regardless of physical form or characteristics made or re-ceived
by any governmental agency in pursuance of law or in transaction of public business. This in-cludes
electronic records. Other matters include items related to public matters that are not required
by law to be submitted to government, but are created or received by the government agency.
Continued on page 2.
Public Records Law 101:
Avoid the top ten most common pitfalls.
Upcoming training:
• Open Meeting Law and Public Re-cords
Law training on July 24, 2008
at the Arizona State Board of Charter
Schools in Phoenix.
• Open Meeting Law and Public Re-cords
Law training on August 1, 2008
in Pinetop- Lakeside, Arizona.
• These training are open to all public
bodies. Please contact Liz Hill for
more information. She may be
reached at 602- 285- 9136 x32 or by
e- mail at ehill@ azoca. gov.
Inside this issue:
Public Records Law 101: Avoid the
top ten most common pitfalls.
1- 3
Recent Attorney General Opinions 1, 3
2008 Legislation 3
Recent Attorney General Opinions
The Arizona Attorney General’s Office recently issued two opinions regarding Arizona’s Open Meeting
Laws.
On December 24, 2007, the Arizona Attorney General issued Opinion I07- 013. The issue was whether
the open meeting law prohibits members of a public body from making comments to the media con-cerning
issues that may come before the public body. The attorney general concluded that the open
meeting law does not prohibit a member of a public body from speaking to the media regarding mat-ters
that may come before the public body. A meeting subject to the open meeting law requires a gath-ering
of a quorum of members of the public body, and a gathering does not occur when members
merely hear or read a comment, including a proposal for legal action , made by another member in the
media.
Continued on page 3.
Arizona Ombudsman- Citizens’ Aide
The Public Record July 2008
Volume 1, Issue 1
Pitfall # 8: Not disclosing promptly
Access is deemed denied if a public body fails to promptly respond. While promptly is not defined by statute, and de-pends
on what is reasonable under the circumstances, last year the Arizona Court of Appeals applied Webster’s defini-tion:
“ quick to act or to do what is required†or “ done, spoken, etc., at once or without delay.†West Valley View, Inc. v.
Maricopa County Sheriff’s Office, 216 Ariz. 225, 165 P. 3d 203 ( Ariz. App. Div. 1, 2007)( review denied).
It is important to remember that mere inconvenience does not warrant delay. Recently, the court of appeals found that
Maricopa County Sheriff’s Office wrongfully denied the New Times access to public records under A. R. S.   39- 121.01( D)
( 1) with respect to eight of the nine records, because it failed to promptly furnish the records requested. Phoenix
New Times, L. L. C. v. Joseph M. Arpaio, 177 P. 3d 275 ( Ariz. App. Div. 1, 2008)( review pending).
Pitfall # 7: Not Knowing when to withhold records
There are three reasons to withhold records: 1) the record is made confidential by statute, 2) the record involves
the privacy interests of persons and that interest outweighs the public’s right to know, or 3) disclosure would be detrimental to the best inter-ests
of the State. The latter two are balancing tests that grant the custodian discretion to refuse inspection of public records. These tests
must be applied on a case- by- case basis and inevitably result in inconsistencies.
Pitfall # 6: E- mail
E- mail is a public record if it relates at all to public business. This includes e- mail sent from or received by accounts other than government
e- mail accounts. Similarly, purely personal e- mail, which has no relationship to official duties, does not necessarily qualify as a public record
just because it was on a government computer and e- mail system. Griffis v. Pinal County, 215 Ariz. 1, 156 P. 3d 418 ( 2007).
Pitfall # 5: Redaction
If a public record contains protected information, public bodies must redact ( black out) the protected information and
release the remaining portions of the record. Public bodies may not charge a fee for redaction.
Pitfall # 4: Promises of Confidentiality and Rubber Stamps
The law controls the character of the document. Marking a document privileged, confidential, top secret, etc. or mak-ing
promises of confidentiality ( including clauses in settlement agreements), does not determine whether the record
is subject to disclosure.
Pitfall # 3: Fees
Inspection of records is free. The public records law does not allow public bodies to charge a fee for making records
available or for search time. However, with few exceptions, public bodies may impose a reasonable copying fee if the
requestor requests a copy. Public bodies may also require the requestor to pay in advance for copying and postage
charges of public records mailed.
Pitfall # 2: Not Understanding what constitutes a commercial purpose
In Primary Consultants, L. L. C. v. Maricopa County Recorder, 210 Ariz. 393, 111 P. 3d 435 ( Ariz. App. Div. 1, 2005), the Arizona Court of Ap-peals
broke down the statutory definition of commercial purpose into three sections:
1. Use of a public record for the purpose of sale or resale;
2. Obtaining names and addresses from public records for the purpose of solicitation; or
3. Sale of names and addresses to another for the purpose of solicitation or any purpose for which the purchaser can reasonably anticipate
the receipt of monetary gain from the direct or indirect use of a public record.
Continued on page 3.
Public Records Law 101 cont.
Records include electronic records.
Volume 1, Issue 1 Page 2
“ A public record is
everything created
or received by a
government agency
or employee that
relates to public
business.â€
Public bodies may impose a copying fee.
Pitfall # 1: Records Dump
Public bodies may not dispose of or destroy records after receiving a public records request regardless whether the retention period has
expired.
In a nutshell, government employees have a legal and ethical obligation to comply with the public records law. It is simply part of doing busi-ness.
Any person who is denied access may file a special action in superior court. In 2006, the law was amended to allow the court to
award attorney fees to a requestor of public records if the requestor substantially prevails in a court action. In addition, civil or criminal pen-alties
may be imposed. Reduce these risks by becoming familiar with the law and its requirements.
Most recently, on March 11, 2008, the Arizona Attorney General issued Opinion I08- 001. The issue was
whether an open meeting law violation concerning an improperly noticed agenda item effected the validity
of properly noticed agenda items. The attorney general concluded that when a public body violates the
open meeting law by discussing, proposing, or taking legal action on a matter not properly noticed on the
agenda, that violation does not nullify all other legal action taken at the meeting when the violation has no
demonstrated prejudicial effect on the complaining parties.
Public Records Law 101 continued....
Attorney General Opinions continued….
Two recent Attorney General Opinions.
Volume 1, Issue 1 Page 3
“ Government employees have a legal and ethical obligation to comply with the public records law.â€
2008 Legislation
Over a 1,000 bills were introduced last session. Several affect maintenance of records, disclosure of records, and other access related mat-ters.
A couple that might be of particular interest are House Bills 2454 and 2159. House Bill 2454 was signed by the Governor on June 26,
2008, and amends A. R. S. Â  8- 807 making Child Protective Services' records open to the public in cases involving the fatality or near fatality
of a child/ children. See Laws 2008, ch. 279, Â  1. House Bill 2159 was also signed by the Governor on June 26, 2008. It adds A. R. S. Â  39-
128 and opens public employees’ disciplinary records, including an employee’s response, to
public inspection. See Laws 2008, ch. 277, Â  1. These changes take effect September 26,
2008.
For information on how a bill becomes law, go to http:// azleg. gov/ alisPDFs/ hbillaw. pdf.
Greetings! A year or so ago, we may have contacted you
regarding our services to citizens and public officials in mat-ters
related to public access. At that time, we also provided
you with a copy of our open meeting law and public records
law publications. Since then many of you have taken advan-tage
of our services and free training. We hope you will now
take advantage of our newsletter as well.
If you, or anyone else you know, are interested in receiving
future issues electronically, please contact Liz Hill at
ehill@ azoca. gov or call her at 602- 285- 9136 x32.
Of course, our booklets and newsletter are also available on
our website at www. azoca. gov. Please feel free to print and
distribute them as often as you'd like.
In addition, for recent changes to the law, new court opinions,
and new attorney general opinions, that might not be included
in the current publications, be sure to check our website under
open meetings/ recent developments and public records/ recent
developments..
We appreciate your support as we continue to expand our
public access program.
Patrick Shannahan
Arizona Ombudsman— Citizens’ Aide
We’re on the web.
www. azoca. gov
44110
Arizona Ombudsman— Citizens’ Aide
3737 N. 7th St. Ste. 209
Phoenix, Arizona 85014
Arizona Ombudsman— Citizens’ Aide
3737 N. 7th St. Ste. 209
Phoenix, Arizona 85014
Phone: 602- 277- 7292
1- 800- 872- 7312
Fax: 602- 277- 7312
E- mail: ombuds@ azoca. gov