Arizona public records law

              ARIZONA PUBLIC RECORDS LAW
This information is compiled and provided by:
The Arizona Ombudsman – Citizens’ Aide
3737 N. 7th Street, Suite 209
Phoenix, Arizona 85014
( 602) 277- 7292
1- 800- 872- 2879
Fax: ( 602) 277- 7312
e- mail: ombuds@ azoca. gov
website: www. azoca. gov
September 2007
Message from the Arizona Ombudsman
Secrecy and a free, democratic government don’t mix.
– President Harry Truman
Arizona public policy favors open government. Statute specifically requires all offi-cers
and public bodies to maintain, and make available for inspection by any person
at all times during office hours, all records reasonably necessary to maintain an accurate
knowledge of their official activities.
Effective January 1, 2007, in an effort to increase government awareness and provide
the citizens of Arizona an effective and efficient means to get answers and resolve pub-lic
access disputes, new legislation expanded the Ombudsman- Citizens’ Aide Office
to provide free services to citizens and public officials to help untangle the public ac-cess
web. The duties of the Ombudsman include: preparing materials on public access
laws, providing training to public bodies, coaching and assisting citizens, investigat-ing
complaints, requesting testimony or evidence, conducting hearings, making rec-ommendations,
and reporting misconduct.
This pamphlet contains information relating to the Arizona Public Records Law and
is provided to serve as a quick reference for you. Part I of the pamphlet contains the
text of the Public Record Law Statutes. Part II contains a copy of Chapter 6 of the Ari-zona
Agency Handbook, which explains the Public Records Laws. 1 Part III provides
a summary of recent statutory changes, recent case law, and recent Attorney General
Opinions. 2 Part IV provides the Ombudsman’s statutory authority to educate and in-vestigate
matters relating to public access laws.
For more information, or to schedule training, please call the Ombudsman’s Office at
602- 277- 7292 or 800- 872- 2879. You can also send a letter to Arizona Ombudsman-
Citizens’ Aide 3737 N. 7th St. Suite 209 Phoenix, AZ 85014, fax a letter to 602- 277-
7312, send an e- mail to ombuds@ azoca. gov, or come into the office. Of course, you
can always visit the Ombudsman’s website at www. azoca. gov.
Patrick Shannahan
Arizona Ombudsman – Citizens’Aide
1 Please note that the Arizona Agency Handbook was last revised in May 2001. For a
summary of recent activity, please see Part III.
2 Part III is not an exhaustive list of recent activity.
i
ii
Table of Contents
Message from Patrick Shannahan,
Arizona Ombudsman – Citizens’Aide . . . . . . . . . . . . . . . . . . . . . . . . . . i
Part I
Arizona Revised Statutes
Title 39. Public Records, Printing and Notices
Chapter 1. Public Records.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Part II
Arizona Agency Handbook
Chapter 6, Public Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The Arizona Agency Handbook was written by
the Office of the Arizona Attorney General.
Part III
Summary of Recent Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Part IV
Ombudsman- Citizens’ Aide Enabling Statute . . . . . . . . . . . . . . . . . . . 33
iii
iv
Part I
Arizona Revised Statutes
Title 39. Public Records, Printing and Notices
Chapter 1 Public Records
Article 1 - Requirements for Material Used
39- 101. Permanent public records; quality;
storage; violation; classification . . . . . . . . . . . . . . . . . . . . . . . 3
39- 102. Annual report; copies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
39- 103. Size of public records; exemptions. . . . . . . . . . . . . . . . . . . . . 3
Article 2 - Searches and Copies
39- 121. Inspection of public records . . . . . . . . . . . . . . . . . . . . . . . . . . 3
39- 121.01. Definitions; maintenance of records;
copies, printouts or photographs
of public records; examination by mail; index. . . . . . . . . . . . 4
39- 121.02. Action on denial of access; costs and attorney fees;
damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
39- 121.03. Request for copies, printouts or photographs;
statement of purpose; commercial purpose as
abuse of public record; determination by governor;
civil penalty; definition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
39- 122. Free searches for and copies of public records
to be used in claims against United States;
liability for noncompliance . . . . . . . . . . . . . . . . . . . . . . . . . . 6
39- 123. Information identifying eligible persons;
confidentiality; definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
39- 124. Releasing information identifying an eligible person;
violations; classification; definitions . . . . . . . . . . . . . . . . . . . 8
39- 125. Information relating to location of archaeological
discoveries and places or objects included
or eligible for inclusion on the Arizona register
of historic places; confidentiality . . . . . . . . . . . . . . . . . . . . . . 9
39- 126. Federal risk assessments of infrastructure;
confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
39- 127. Free copies of police reports and transcripts
for crime victims; definitions . . . . . . . . . . . . . . . . . . . . . . . . 10
1
Article 3 - Lost Records
39- 141. Proof of certain lost or destroyed documents
or instruments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
39- 142. Action for restoration and substitution of lost
or destroyed documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
39- 143. Judgment of restoration; recording of judgment;
judgment as substitute for original instrument . . . . . . . . . . . 11
39- 144. Recording of certified copies of lost or
destroyed records or records of a former county . . . . . . . . . 11
39- 145. Re- recording of original papers when record destroyed . . . 11
Article 4 - False Instruments and Records
39- 161. Presentment of false instrument for filing; classification . . . 11
2
ARTICLE 1 - REQUIREMENTS FOR MATERIAL USED
39- 101. Permanent public records; quality; storage; violation;
classification
A. Permanent public records of the state, a county, city or town, or other political sub-division
of the state, shall be transcribed or kept on paper or other material which
is of durable or permanent quality and which conforms to standards established
by the director of the Arizona state library, archives and public records.
B. Permanent public records transcribed or kept as provided in subsection A shall be
stored and maintained according to standards for the storage of permanent public
records established by the director of the Arizona state library, archives and pub-lic
records.
C. A public officer charged with transcribing or keeping such public records who vi-olates
this section is guilty of a class 2 misdemeanor.
39- 102. Annual report; copies
Unless otherwise specifically required by law, each agency, board, commission and
department which prepares an annual report of its activities shall prepare and distrib-ute
as provided by law copies of such annual report on twenty pound bond paper print-ed
with black ink except that the cover and back pages may be of sixty- five pound or
less cover paper.
39- 103. Size of public records; exemptions
A. All public records of this state or a political subdivision of this state created on
paper, regardless of weight or composition, shall conform to standard letter size
of eight and one- half inches by eleven inches, within standard paper manufactur-ing
tolerances.
B. This section does not apply to public records smaller than eight and one- half inch-es
by eleven inches, public records otherwise required by law to be of a different
size, engineering drawings, architectural drawings, maps, computer generated
printout, output from test measurement and diagnostic equipment, machine gen-erated
paper tapes and public records otherwise exempt by law. Upon written ap-plication
the director of the Arizona state library, archives and public records may
approve additional exemptions from this section if based upon such application the
director finds that the cost of producing a particular type of public record in ac-cordance
with subsection A is so great as to not be in the best interests of this state.
ARTICLE 2 - SEARCHES AND COPIES
39- 121. Inspection of public records
Public records and other matters in the custody of any officer shall be open to in-spection
by any person at all times during office hours.
3
39- 121.01. Definitions; maintenance of records; copies, printouts or
photographs of public records; examination by mail; index
A. In this article, unless the context otherwise requires:
1. “ Officer†means any person elected or appointed to hold any elective or ap-pointive
office of any public body and any chief administrative officer, head,
director, superintendent or chairman of any public body.
2. “ Public body†means the state, any county, city, town, school district, politi-cal
subdivision or tax- supported district in the 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
the state or any political subdivision of the state, or expending monies provided
by the state or any political subdivision of the state.
B. All officers and public bodies shall maintain all records, including records as de-fined
in section 41- 1350, reasonably necessary or appropriate to maintain an ac-curate
knowledge of their official activities and of any of their activities which are
supported by monies from the state or any political subdivision of the state.
C. Each public body shall be responsible for the preservation, maintenance and care
of that body’s public records, and each officer shall be responsible for the preser-vation,
maintenance and care of that officer’s public records. It shall be the duty
of each such body to carefully secure, protect and preserve public records from de-terioration,
mutilation, loss or destruction, unless disposed of pursuant to sections
41- 1347 and 41- 1351.
D. Subject to section 39- 121.03:
1. Any person may request to examine or be furnished copies, printouts or pho-tographs
of any public record during regular office hours or may request that
the custodian mail a copy of any public record not otherwise available on the
public body’s web site to the requesting person. The custodian may require any
person requesting that the custodian mail a copy of any public record to pay
in advance for any copying and postage charges. The custodian of such records
shall promptly furnish such copies, printouts or photographs and may charge
a fee if the facilities are available, except that public records for purposes list-ed
in section 39- 122 or 39- 127 shall be furnished without charge.
2. If requested, the custodian of the records of an agency shall also furnish an index
of records or categories of records that have been withheld and the reasons the
records or categories of records have been withheld from the requesting person.
The custodian shall not include in the index information that is expressly made
privileged or confidential in statute or a court order. This paragraph shall not be
construed by an administrative tribunal or a court of competent jurisdiction to
prevent or require an order compelling a public body other than an agency to
furnish an index. For the purposes of this paragraph, “ agency†has the same
meaning prescribed in section 41- 1001, but does not include the department of
public safety, the department of transportation motor vehicle division, the de-partment
of juvenile corrections and the state department of corrections.
4
3. If the custodian of a public record does not have facilities for making copies,
printouts or photographs of a public record which a person has a right to in-spect,
such person shall be granted access to the public record for the purpose
of making copies, printouts or photographs. The copies, printouts or photo-graphs
shall 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 super-vision
of such custodian.
E. Access to a public record is deemed denied if a custodian fails to promptly respond
to a request for production of a public record or fails to provide to the requesting
person an index of any record or categories of records that are withheld from
production pursuant to subsection D, paragraph 2 of this section.
39- 121.02. Action on denial of access; costs and attorney fees; damages
A. 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.
B. The 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 substan-tially
prevailed. Nothing in this paragraph shall limit the rights of any party to re-cover
attorney fees pursuant to section 12- 341.01, subsection C, or attorney fees,
expenses and double damages pursuant to section 12- 349.
C. Any person who is wrongfully denied access to public records pursuant to this
article has a cause of action against the officer or public body for any damages
resulting from the denial.
39- 121.03. Request for copies, printouts or photographs; statement
of purpose; commercial purpose as abuse of public record;
determination by governor; civil penalty; definition
A. When a person requests copies, printouts or photographs of public records for a
commercial purpose, the person shall provide a statement setting forth the com-mercial
purpose for which the copies, printouts or photographs will be used. Upon
being furnished the statement the custodian of such records may furnish repro-ductions,
the charge for which shall include the following:
1. A portion of the cost to the public body for obtaining the original or copies of
the documents, printouts or photographs.
2. A reasonable fee for the cost of time, materials, equipment and personnel in
producing such reproduction.
3. The value of the reproduction on the commercial market as best determined
by the public body.
B. If the custodian of a public record determines that the commercial purpose stated
in the statement is a misuse of public records or is an abuse of the right to receive
public records, the custodian may apply to the governor requesting that the gov-
5
ernor by executive order prohibit the furnishing of copies, printouts or photo-graphs
for such commercial purpose. The governor, upon application from a cus-todian
of public records, shall determine whether the commercial purpose is a
misuse or an abuse of the public record. If the governor determines that the pub-lic
record shall not be provided for such commercial purpose the governor shall
issue an executive order prohibiting the providing of such public records for such
commercial purpose. If no order is issued within thirty days of the date of appli-cation,
the custodian of public records shall provide such copies, printouts or pho-tographs
upon being paid the fee determined pursuant to subsection A.
C. A person who obtains a public record for a commercial purpose without indicat-ing
the commercial purpose or who obtains a public record for a noncommercial
purpose and uses or knowingly allows the use of such public record for a com-mercial
purpose or who obtains a public record for a commercial purpose and uses
or knowingly allows the use of such public record for a different commercial pur-pose
or who obtains a public record from anyone other than the custodian of such
records and uses it for a commercial purpose shall in addition to other penalties
be liable to the state or the political subdivision from which the public record was
obtained for damages in the amount of three times the amount which would have
been charged for the public record had the commercial purpose been stated plus
costs and reasonable attorney fees or shall be liable to the state or the political sub-division
for the amount of three times the actual damages if it can be shown that
the public record would not have been provided had the commercial purpose of
actual use been stated at the time of obtaining the records.
D. For the purposes of this section, “ commercial purpose†means the use of a public
record for the purpose of sale or resale or for the purpose of producing a document
containing all or part of the copy, printout or photograph for sale or the obtaining
of names and addresses from public records for the purpose of solicitation or the
sale of names and addresses to another for the purpose of solicitation or for any
purpose in which the purchaser can reasonably anticipate the receipt of monetary
gain from the direct or indirect use of the public record. Commercial purpose
does not mean the use of a public record as evidence or as research for evidence
in an action in any judicial or quasi- judicial body.
39- 122. Free searches for and copies of public records to be used in claims
against United States; liability for noncompliance
A. No state, county or city, or any officer or board thereof shall demand or receive a
fee or compensation for issuing certified copies of public records or for making
search for them, when they are to be used in connection with a claim for a pen-sion,
allotment, allowance, compensation, insurance or other benefits which is to
be presented to the United States or a bureau or department thereof.
B. Notaries public shall not charge for an acknowledgment to a document which is
to be so filed or presented.
C. The services specified in subsections A and B shall be rendered on request of an
6
official of the United States, a claimant, his guardian or attorney. For each failure
or refusal so to do, the officer so failing shall be liable on his official bond.
39- 123. Information identifying eligible persons; confidentiality; defini-tions
A. Nothing in this chapter requires disclosure from a personnel file by a law en-forcement
agency or employing state or local governmental entity of the home ad-dress
or home telephone number of eligible persons.
B. The agency or governmental entity may release the information in subsection A
of this section only if either:
1. The person consents in writing to the release.
2. The custodian of records of the agency or governmental entity determines
that release of the information does not create a reasonable risk of physical in-jury
to the person or the person’s immediate family or damage to the proper-ty
of the person or the person’s immediate family.
C. A law enforcement agency may release a photograph of a peace officer if either:
1. The peace officer has been arrested or has been formally charged by complaint,
information or indictment for a misdemeanor or a felony offense.
2. The photograph is requested by a representative of a newspaper for a specif-ic
newsworthy event unless:
( a) The peace officer is serving in an undercover capacity or is scheduled to
be serving in an undercover capacity within sixty days.
( b) The release of the photograph is not in the best interest of this state after
taking into consideration the privacy, confidentiality and safety of the
peace officer.
( c) An order pursuant to section 28- 454 is in effect.
D. This section does not prohibit the use of a peace officer’s photograph that is either:
1. Used by a law enforcement agency to assist a person who has a complaint
against an officer to identify the officer.
2. Obtained from a source other than the law enforcement agency.
E. This section does not apply to a certified peace officer or code enforcement offi-cer
who is no longer employed as a peace officer or code enforcement officer by
a state or local government entity.
F. For the purposes of this section:
1. “ Code enforcement officer†means a person who is employed by a state or local
government and whose duties include performing field inspections of build-ings,
structures or property to ensure compliance with and enforce national,
state and local laws, ordinances and codes.
2. “ Commissioner†means a commissioner of the superior court.
3. “ Corrections support staff member†means an adult or juvenile corrections em-ployee
who has direct contact with inmates.
4. “ Eligible person†means a peace officer, justice, judge, commissioner, public
defender, prosecutor, code enforcement officer, adult or juvenile corrections of-
7
ficer, corrections support staff member, probation officer, member of the board
of executive clemency, law enforcement support staff member, national guard
member who is acting in support of a law enforcement agency, person who is
protected under an order of protection or injunction against harassment, fire-fighter
who is assigned to the Arizona counterterrorism center in the depart-ment
of public safety or victim of domestic violence or stalking who is
protected under an order of protection or injunction against harassment.
5. “ Judge†means a judge of the United States district court, the United States
court of appeals, the United States magistrate court, the United States bank-ruptcy
court, the Arizona court of appeals, the superior court or a municipal
court.
6. “ Justice†means a justice of the United States or Arizona supreme court or a
justice of the peace.
7. “ Law enforcement support staff member†means a person who serves in the
role of an investigator or prosecutorial assistant in an agency that investigates
or prosecutes crimes, who is integral to the investigation or prosecution of
crimes and whose name or identity will be revealed in the course of public pro-ceedings.
8. “ Peace officer†has the same meaning prescribed in section 13- 105.
9. “ Prosecutor†means a county attorney, a municipal prosecutor, the attorney gen-eral
or a United States attorney and includes an assistant or deputy United
States attorney, county attorney, municipal prosecutor or attorney general.
10. “ Public defender†means a federal public defender, county public defender,
county legal defender or county contract indigent defense counsel and in-cludes
an assistant or deputy federal public defender, county public defender
or county legal defender.
39- 124. Releasing information identifying an eligible person; violations;
classification; definitions
A. Any person who is employed by a state or local government entity and who, in vi-olation
of section 39- 123, knowingly releases the home address or home tele-phone
number of an eligible person with the intent to hinder an investigation,
cause physical injury to an eligible person or the eligible person’s immediate fam-ily
or cause damage to the property of an eligible person or the eligible person’s
immediate family is guilty of a class 6 felony.
B. Any person who is employed by a state or local government entity and who, in vi-olation
of section 39- 123, knowingly releases a photograph of a peace officer
with the intent to hinder an investigation, cause physical injury to a peace officer
or the peace officer’s immediate family or cause damage to the property of a
peace officer or the peace officer’s immediate family is guilty of a class 6 felony.
C. For the purposes of this section:
1. “ Code enforcement officer†means a person who is employed by a state or local
government and whose duties include performing field inspections of build-
8
ings, structures or property to ensure compliance with and enforce national,
state and local laws, ordinances and codes.
2. “ Commissioner†means a commissioner of the superior court.
3. “ Corrections support staff member†means an adult or juvenile corrections em-ployee
who has direct contact with inmates.
4. “ Eligible person†means a peace officer, justice, judge, commissioner, public
defender, prosecutor, code enforcement officer, adult or juvenile corrections of-ficer,
corrections support staff member, probation officer, member of the board
of executive clemency, law enforcement support staff member, national guard
member who is acting in support of a law enforcement agency, person who is
protected under an order of protection or injunction against harassment, fire-fighter
who is assigned to the Arizona counterterrorism center in the depart-ment
of public safety or victim of domestic violence or stalking who is
protected under an order of protection or injunction against harassment.
5. “ Judge†means a judge of the United States district court, the United States
court of appeals, the United States magistrate court, the United States bank-ruptcy
court, the Arizona court of appeals, the superior court or a municipal
court.
6. “ Justice†means a justice of the United States or Arizona supreme court or a
justice of the peace.
7. “ Law enforcement support staff member†means a person who serves in the
role of an investigator or prosecutorial assistant in an agency that investigates
or prosecutes crimes, who is integral to the investigation or prosecution of
crimes and whose name or identity will be revealed in the course of public pro-ceedings.
8. “ Peace officer†has the same meaning prescribed in section 13- 105.
9. “ Prosecutor†means a county attorney, a municipal prosecutor, the attorney gen-eral
or a United States attorney and includes an assistant or deputy United
States attorney, county attorney, municipal prosecutor or attorney general.
10. “ Public defender†means a federal public defender, county public defender,
county legal defender or county contract indigent defense counsel and in-cludes
an assistant or deputy federal public defender, county public defender
or county legal defender.
39- 125. Information relating to location of archaeological discoveries and
places or objects included or eligible for inclusion on the Arizona
register of historic places; confidentiality
Nothing in this chapter requires the disclosure of public records or other matters in the
office of any officer that relate to the location of archaeological discoveries as described
in section 41- 841 or 41- 844 or places or objects that are included on or may qualify
for inclusion on the Arizona register of historic places as described in section 41-
511.04, subsection A, paragraph 9. An officer may decline to release this information
if the officer determines that the release of the information creates a reasonable risk
9
of vandalism, theft or other damage to the archaeological discoveries or the places or
objects that are included on or may qualify for inclusion on the register. In making a
decision to disclose public records pursuant to this section, an officer may consult with
the director of the Arizona state museum or the state historic preservation officer.
39- 126. Federal risk assessments of infrastructure; confidentiality
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 telecommu-nications
infrastructure to determine its vulnerability to sabotage or attack.
39- 127. Free copies of police reports and transcripts for crime victims;
definitions
A. A victim of a criminal offense that is a part I crime under the statewide uniform
crime reporting program or an immediate family member of the victim if the vic-tim
is killed or incapacitated has the right to receive one copy of the police report
from the investigating law enforcement agency at no charge and, on request of the
victim, the court or the clerk of the court shall provide, at no charge, the minute
entry or portion of the record of any proceeding in the case that arises out of the
offense committed against the victim and that is reasonably necessary for the pur-pose
of pursuing a claimed victim’s right.
B. For the purposes of this section, “ criminal offense,†“ immediate family†and “ vic-timâ€
have the same meanings prescribed in section 13- 4401.
ARTICLE 3 - LOST RECORDS
39- 141. Proof of certain lost or destroyed documents or instruments
Any deed, bond, bill of sale, mortgage, deed of trust, power of attorney or conveyance
which is required or permitted by law to be acknowledged or recorded which has been
so acknowledged or recorded, or any judgment, order or decree of a court of record
in this state or the record or minute containing such judgment, which is lost or de-stroyed,
may be supplied by parol proof of its contents.
39- 142. Action for restoration and substitution of lost or destroyed
documents
Upon loss or destruction of an instrument as indicated in section 39- 141, a person in-terested
therein may bring an action in the superior court of the county where the loss
or destruction occurred for restoration and substitution of such instrument against the
grantor in a deed, or the parties interested in the instrument, or the parties who were
interested adversely to plaintiff at the time of the rendition of judgment, or who are
then adversely interested, or the heirs and legal representatives of such parties.
10
39- 143. Judgment of restoration; recording of judgment; judgment as
substitute for original instrument
A. If upon the trial of the action provided for in section 39- 142, the court finds that
such instrument existed, and has been lost or destroyed and determines the con-tents
thereof, it shall enter a judgment containing the finding and a description of
the lost instrument and contents thereof.
B. A certified copy of the judgment may be recorded, and shall be substituted for and
have the same force and effect as the original instrument.
39- 144. Recording of certified copies of lost or destroyed records or
records of a former county
Certified copies from a record of a county, the record of which has been lost or de-stroyed,
and certified copies from records of the county from which a new county was
created, may be recorded in such county when the loss of the original has been first
established.
39- 145. Re- recording of original papers when record destroyed
When the original papers have been preserved but the record thereof has been lost or
destroyed, they may again be recorded within four years from the loss or destruction
of such record. The last registration shall have force and effect from the date of the orig-inal
registration.
ARTICLE 4 - FALSE INSTRUMENTS AND RECORDS
39- 161. Presentment of false instrument for filing; classification
A person who acknowledges, certifies, notarizes, procures or offers to be filed, regis-tered
or recorded in a public office in this state an instrument he knows to be false or
forged, which, if genuine, could be filed, registered or recorded under any law of this
state or the United States, or in compliance with established procedure is guilty of a
class 6 felony. As used in this section “ instrument†includes a written instrument as
defined in section 13- 2001.
11
12
Part II
Arizona Agency Handbook
Chapter 6
Public Records
Section 6.1 Scope of this Chapter . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 6.2 Scope of Public Records Requirements
6.2.1 Arizona’s Policy of Public Disclosure . . . . . . . . . . . 14
6.2.1.1 What is a Public Record. . . . . . . . . . . . . . . . . . . . . . 14
6.2.1.2 Persons Subject to the Public Records Laws . . . . . . 15
Section 6.3 Types of Public Records . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6.4 Denying Public Inspection . . . . . . . . . . . . . . . . . . . . . . 16
6.4.1 Records Confidential by Statute. . . . . . . . . . . . . . . . 16
6.4.2 Records Involving Privacy Interests . . . . . . . . . . . . . 17
6.4.3 Discretionary Refusal to Disclose . . . . . . . . . . . . . . 17
6.4.4 Requests by Litigants . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.5 Procedure for Handling Requests
for Access to Public Records or Other Matters
6.5.1 Duty to Redact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.5.2 Inspection of Public Records . . . . . . . . . . . . . . . . . . 19
6.5.3 Charges for Copies . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.5.4 Non- Commercial Use. . . . . . . . . . . . . . . . . . . . . . . . 20
6.5.5 Commercial Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.5.6 Free Copies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.6 Consequences of Wrongful Refusal to Disclose
6.6.1 Attorney’s Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.6.2 Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.7 Preservation, Maintenance, Reproduction,
and Disposition of Public Records
6.7.1 Preservation and Maintenance Generally. . . . . . . . . 21
6.7.2 Quality and Storage Requirements. . . . . . . . . . . . . . 22
6.7.3 Size Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.7.4 Reproduction of Public Records . . . . . . . . . . . . . . . 23
6.7.5 Disposition of Public Records . . . . . . . . . . . . . . . . . 23
Note Regarding Appendices
and Record Management . . . . . . . . . . . . . . . . . . . . . 24
13
6.1 Scope of this Chapter.
This Chapter presents guidelines for agencies to use in determining which documents
are subject to public scrutiny under the Arizona public record law, A. R. S. Â  Â  39- 101
to - 161, and discusses the procedure for handling requests for access to public records.
It also discusses the preservation and disposition of records.
6.2 Scope of Public Records Requirements.
6.2.1 Arizona’s Policy of Public Disclosure. Section 39- 121, A. R. S., sets forth the
general policy of this State with respect to public inspection of governmental records:
“ Public records and other matters in the custody of any officer shall be open to in-spection
by any person at all times during office hours.†The public records statute seeks
to increase public access to government information and to make government agen-cies
accountable to the public.
6.2.1.1 What is a Public Record. As a general rule, “ all records required to be kept
under A. R. S. Â  39- 121.01( B) are presumed open to the public for inspection as pub-lic
records.†Carlson v. Pima County, 141 Ariz. 487, 491, 687 P. 2d 1242, 1246 ( 1984).
Section 39- 121.01( B), A. R. S., requires all officers and public bodies to maintain
records, including records defined in A. R. S. Â  41- 1350, reasonably necessary to pro-vide
an accurate accounting of their official activities and of any government- funded
activities. Section 41- 1350, A. R. S., defines “ records†as
all books, papers, maps, photographs or other documentary materials, re-gardless
of physical form or characteristics, including prints or copies of
such items produced or reproduced on film or electronic media pursuant
to   41- 1348, made or received by any governmental agency in pursuance
of law or in connection with the transaction of public business and pre-served
or appropriate for preservation by the agency or its legitimate suc-cessor
as evidence of the organization, functions, policies, decisions,
procedures, operations or other activities of the government, or because
of the informational and historical value of data contained therein.
Section 39- 121 also requires public officers to disclose “ other matters.†“ Other mat-ters
subject to the public’s right of access include documents which are not required
by law to be filed as public records. …’†Salt River Pima- Maricopa Indian Commu-nity
v. Rogers, 168 Ariz. 531, 539, 815 P. 2d 900, 908 ( 1991). “ Other matters†include
documents held by the public officer in his or her official capacity and in which the
public’s interest in disclosure outweighs the governmental interest in confidentiality.
Id. The Court of Appeals has therefore endorsed the Attorney General’s opinion that:
the proper way to view all requests for information is not to determine
whether or not a record is technically a public record or other matter, but
instead to determine if release of the information would have an impor-
14
tant and harmful effect upon the official duties of the official or agency.
Church of Scientology v. City of Phoenix Police Dep’t, 122 Ariz. 338, 339, 594 P. 2d
1034, 1035 ( Ct. App. 1979) ( quoting Ariz. Att’y Gen. Op. 76- 43 ( 1976)). Few, if any,
records in the possession or control of a public officer will not be “ public records.â€
Carlson, 141 Ariz. at 490, 687 P. 2d at 1245. For examples of documents that have been
found to be “ public records†and “ other matters,†see Section 6.3 infra.
6.2.1.2 Persons Subject to the Public Records Laws. The laws governing public
records apply to “ any person elected or appointed to hold any elective or appointive
office of any public body and any chief administrative officer, head, director, super-intendent
or chairman of any public body.†A. R. S.   39- 121.01( A)( 1). Public body is
defined as “ the state, any county, city, town, school district, political subdivision or tax-supported
district in the state, any branch, department, board, bureau, commission,
council or committee of the foregoing, and any public organization or agency, sup-ported
in whole or in part by funds from the state or any political subdivision there-of,
or expending funds provided by the state or any political subdivision thereof.†Id.,
  ( A)( 2). This definition differs from and is more inclusive than the term “ public
body†defined in the State’s Open Meeting Law. A. R. S.   38- 431( 5). See, e. g., Ariz.
Att’y Gen. Op. I95- 010 ( both Public Records Law and Open Meeting Law apply to
charter schools but a different analysis applies); Ariz. Att’y Gen. Op. I85- 101 ( for pub-lic
records purposes, the county public defender is a public official and therefore
records made or received by that office are records of the State subject to the re-quirements
discussed in this Chapter). By definition, the employees of public officers
and public bodies are also bound by public records laws.
6.3 Types of Public Records.
The following are examples of types of documents that have been found to be “ pub-lic
records and other matters†and thus are available upon request to the public except
for any portions of the document that may be protected from disclosure ( discussed in
Section 6.5 below):
1. Permits and application forms for permits, Ariz. Att’y Gen. Op. I80- 097;
2. Documents indicating the number of applicants for personnel positions by race
and national origin, where no personal identification of the applicant is sought,
Ariz. Att’y Gen. Op. I80- 044;
3. Official records of proceedings of state boards and commissions, such as the Ari-zona
Board of Tax Appeals, Ariz. Att’y Gen. Op. I79- 316, and the Industrial
Commission, Industrial Comm’n v. Holohan, 97 Ariz. 122, 126, 397 P. 2d 624, 627
( 1964);
4. Taxpayers’ property tax valuations and the Board of Tax Appeals’ records on ap-peals
of property tax valuations, Ariz. Att’y Gen. Op. I78- 234;
15
5. Probate files, Henderson v. Las Cruces Prod. Credit Ass’n, 6 Ariz. App. 549,
554, 435 P. 2d 56, 61 ( 1967);
6. Budgets of both houses of the Legislature, Ariz. Att’y Gen. Op. 78- 76;
7. Records of expenditures of public monies, Ariz. Att’y Gen. Op. 70- 1;
8. Annual reports filed by corporations with the Arizona Corporation Commission,
State v. Betts, 71 Ariz. 362, 366- 67, 227 P. 2d 749, 752 ( 1951); Ariz. Att’y Gen.
Op. 61- 114- L;
9. Books of accounts of municipalities, Ariz. Att’y Gen. Op. 56- 8;
10. A county sheriff’s “ offense report†of an assault by a prisoner in the county jail,
Carlson v. Pima County, 141 Ariz. 487, 687 P. 2d 1242 ( 1984);
11. Petitions for land annexation by cities, Moorehead v. Arnold, 130 Ariz. 503, 505,
637 P. 2d 305, 307 ( Ct. App. 1981);
12. Autopsy reports prepared by county medical examiners, Star Publ’g Co. v. Parks,
178 Ariz. 604, 875 P. 2d 837 ( Ct. App. 1993); Ariz. Att’y Gen. Op. I88- 130;
13. Reports of industrial injuries, Ariz. Att’y Gen. Op. I86- 090;
14. Computer backup tapes containing all documents for County Attorney’s Office
including e- mail communications of employees, Star Publ’g Co. v. Pima Coun-ty
Attorney’s Office, 181 Ariz. 432, 891 P. 2d 899 ( Ct. App. 1994) ( County failed
to provide specific factual basis to support argument that records were protected
from disclosure); and
15. Videotapes held by the Yuma County Police Department, KPNX- TV v. Superior
Court, 183 Ariz. 589, 905 P. 2d 598 ( Ct. App. 1995) ( but holding that the State
properly withheld disclosure of one of two videotapes because of safety and se-curity
concerns).
6.4 Denying Public Inspection.
The custodian of public records may deny inspection when:
1. The record is made confidential by statute, Berry v. State, 145 Ariz. 12, 13, 699
P. 2d 387, 388 ( Ct. App. 1985);
2. The record involves the privacy interests of persons, Scottsdale Unified School Dist.
No. 48 v. KPNX Broad. Co., 191 Ariz. 297, 955 P. 2d 534, 537 ( 1998); or
3. Disclosure would be detrimental to the best interests of the State, Board of Regents
v. Phoenix Newspapers, Inc., 167 Ariz. 254, 258, 806 P. 2d 348, 351 ( 1991);
KPNX- TV, 183 Ariz. at 592, 905 P. 2d at 601.
6.4.1 Records Confidential by Statute. There are over 300 Arizona statutes that
address the confidentiality of records. A comprehensive list of the Arizona statutes
that may require that all or a portion of governmental records be protected from
public disclosure is included at the end of this chapter. Appendix 6.1. Arizona rules
may also limit disclosure of certain information. See, e. g., A. A. C. R2- 5- 105 ( limiting
public access to information in personnel files to the following: name of employee;
16
date of employment; current and previous class title; name and location of current and
previous agencies to which the employee has been assigned; current and previous
salaries and dates of each change; name of employee’s current or last known super-visor).
In addition, federal law may require confidential treatment of certain infor-mation.
See, e. g., 42 U. S. C. Â  405( c)( 2)( c)( ii), ( viii)( I) ( prohibiting disclosure of social
security numbers to unauthorized persons). Public officials and employees should
review the confidentiality provisions that affect their areas of responsibility to avoid
disclosure of confidential information.
6.4.2 Records Involving Privacy Interests. The Arizona courts have long recog-nized
personal privacy as an exception to the general rule requiring access to govern-ment
records. See Scottsdale Unified School Dist., 191 Ariz. at 300, 955 P. 2d at 537;
Carlson, 141 Ariz. At 490, 687 P. 2d 1245 ( 1984). Under this exception, the custodi-an
has discretion to deny public inspection when the disclosure would invade priva-cy
and that invasion outweighs the public’s right to know. See id.
Because privacy is not defined under the Public Records Law, the Arizona Supreme
Court relied on United States Supreme Court’s definition of privacy under the feder-al
Freedom of Information Act in finding that “ information is ‘ private if it is intend-ed
for or restricted to the use of a particular person or group or class of persons: not
freely available to the public’†and “ the privacy interest encompasses ‘ the individual’s
control of information concerning his or her person.’†Scottsdale Unified School Dist.,
101 Ariz. at 301, 955 P. 2d at 538 ( quoting United States Dep’t of Justice v. Reporters
Comm. for Freedom of the Press, 489 U. S. 749, 763- 64 ( 1989)).
A person has a privacy interest in his or her birthdate. Id. at 302, 955 P. 2d at 538.
State employees have a privacy interest in their home addresses and phone numbers.
Ariz. Att’y Gen. Op. I91- 004. Although autopsy reports are subject to the Public
Records Law, the privacy interests of survivors may justify nondisclosure in some cir-cumstances.
Ariz. Att’y Gen. Op. I88- 130. The “ records of the Industrial Commission’s
proceedings, orders and awards†are public but “ information which is not collected to
serve as a memorial of an official transaction or for the dissemination of information
is private …â€. Industrial Comm’n, 97 Ariz. at 126, 397 P. 2d at 627. The public’s right
to know generally outweighs the privacy concerns of a convicted offender. Mitchell
v. Superior Court, 142 Ariz. 332, 335, 690 P. 2d 51, 53 ( 1984).
6.4.3 Discretionary Refusal to Disclose. The Arizona Supreme Court has also rec-ognized
that an officer or custodian of public records may refuse inspection of pub-lic
records to protect the best interests of the State where “ inspection might lead to
substantial and irreparable private or public harm.†Carlson, 141 Ariz. at 491, 687 P. 2d
at 1246.
As early as 1952, the Arizona Supreme Court recognized an exception to public dis-closure
for records the disclosure of which would be detrimental to the best interests
of the State. Mathews v. Pyle, 75 Ariz. 76, 251 P. 2d 893 ( 1952). The standard “ detri-mental
to the best interests of the state†permits a public body to designate a record
17
as confidential only when the “ release of information would have an important and
harmful effect on the duties of the officials or agency in question.†Board of Regents,
167 Ariz. at 257- 58, 806 P. 2d at 351- 52 ( 1991). Public officers must balance the pos-sible
adverse impact on the operation of the public body if the information in ques-tion
is disclosed against the public’s right to be informed about the operations of its
government. Id. at 258, 806 P. 2d at 352. When a public officer determines that the harm
to the State outweighs the public right to disclosure of a document, he has the burden
of specifically demonstrating the harm if his decision is challenged in superior court.
Cox Arizona Publications, Inc. v. Collins, 175 Ariz. 11, 14, 852 P. 2d 1194, 1198
( 1993).
Applying the balancing test in Board of Regents, the Supreme Court held that the
public’s interest in ensuring the State’s ability to secure the most qualified candidate
for university president is more compelling than its interest in knowing the names of
all of the “ prospects†for the position. Board of Regents, 167 Ariz. at 258, 806 P. 2d at
352. When a “ prospect†is seriously considered and interviewed, the “ prospect†be-comes
a candidate. The court held that the public’s interest in knowing which candi-dates
are being considered for the job outweighs “ countervailing interests of
confidentiality and privacy and the best interests of the State.†Id.; see also KPNX- TV,
183 Ariz. at 593, 905 P. 2d at 602 ( State justified the withholding of surveillance cam-era
videotape due to its “ security concerns about public disclosure of a videotape
showing undercover officers, the evidence locker, and the location of the surveillance
camera.â€).
A public officer or public body may refuse to disclose documents that contain in-formation
protected by a common law privilege where release of the documents would
be harmful to the best interests of the State. See, e. g., the informant’s privilege, Grimm
v. Arizona Board of Pardons & Paroles, 115 Ariz. 260, 268- 69, 564 P. 2d 1227, 1235-
36 ( 1977) ( recognizing the “ informant’s privilege which, with certain exceptions,
protects the identity of the informant but not generally the contents of the communi-cationâ€);
State v. Celaya, 27 Ariz. App. 564, 567, 556 P. 2d 1167, 1170 ( 1976) ( The
State may withhold from disclosure the identity of persons who furnish information
of violations of law to law enforcement officers in furtherance of the public interest
in effective law enforcementâ€); and the deliberative process privilege, Grimm, 115 Ariz.
at 269, 564 P. 2d at 1235 ( agreeing with the reasoning in United States v. Morgan, 313
U. S. 409 ( 1941) and holding that the mental processes of an administrative decision-maker
were protected from disclosure including the manner and extent of his study of
the administrative record and his consultation with subordinates).
The cloak of confidentiality may not be used, however, to save an officer or pub-lic
body from inconvenience or embarrassment. Dunwell v. University of Arizona,
134 Ariz. 504, 508, 657 P. 2d 917, 921 ( Ct. App. 1982); Ariz. Att’y Gen. Op. 76- 43.
Nor may officials deny access simply because the records might be used to establish
tort liability on the part of the State. Ariz. Att’y Gen. Op. I89- 022.
6.4.4 Requests by Litigants. The foregoing guidelines on refusing public inspection
18
may not apply when the person requesting access to the records is a party to litigation
with the State. In those cases, the party may have a greater right to access than the pub-lic
generally. See Grimm, 115 Ariz. at 269, 564 P. 2d at 1235. On the other hand, if a
party to litigation against the State requests records under the Public Records Law, the
party need not demonstrate that the “ documents are relevant to anything†and therefore
may obtain records that would not be discoverable in litigation. Bolm v. Custodian of
Records of Tucson Police Dep’t, 193 Ariz. 35, 39, 969 P. 2d 200, 204 ( Ct. App. 1998).
6.5 Procedure for Handling Requests for Access to Public Records
or Other Matters.
6.5.1 Duty to Redact. When confidential and public information are commingled in
a single document, a copy of the document may be made available for public inspec-tion
with the confidential material excised. Carlson, 141 Ariz. at 491, 687 P. 2d at 1246;
see also KPNX- TV, 183 Ariz. at 594, 905 P. 2d at 603 ( custodian must demonstrate spe-cific
reasons and a good faith basis for denying access to entire record rather than
redacting confidential portions). If confidential material has been attached to an oth-erwise
disclosable document, the material so attached may simply be removed. See id.;
Ariz. Att’y Gen. Ops. I86- 090, I85- 097. The public body should note in its records pre-cisely
which material has been excised and which has been released.
6.5.2 Inspection of Public Records. The right to inspect documents is not un-qualified.
Records may not be inspected at such times and in such manner as to
disrupt public business. See Ariz. Att’y Gen. Ops. I80- 097, 78- 234, 70- 1; A. R. S.   39-
121.01( D)( 1) (“ Any person may request to examine or be furnished copies, printouts
or photographs of any public record during regular office hours.â€) The public is enti-tled
to inspect information within a reasonable time after a request is made. Ariz. Att’y
Gen. Ops. I80- 097, 78- 234, 70- 1.
Whether time and manner are reasonable must in all cases be a factual determina-tion,
depending upon the accessibility of the material. If the information requested is
on microfilm and thus requires use of a reader/ printer to view it, the time for inspec-tion
would depend upon the availability of the necessary equipment. If the requested
material has been stored off the premises of the agency, additional time might be nec-essary
to retrieve the document requested. Should this occur, the requesting party
should be advised, in writing, of the delay and the reason for it. Similarly, if the re-quested
material contains confidential information that must be redacted, the custo-dian
should inform the requesting party that the response will be delayed and the
reason for the delay. If the custodian of the record does not have the facilities for mak-ing
copies, the person requesting the record must be granted access to it for the pur-pose
of making copies. See A. R. S. Â  39- 121.01( D)( 2). However, the copies must be
made while the document remains in possession, custody, and control of the custodi-an.
Id.
19
6.5.3 Charges for Copies. The Legislature has distinguished between the fees an
agency may require for commercial and non- commercial requests for copies of pub-lic
records. A. R. S. Â  Â  39- 121.01( D)( 1), - 121.03( A) infra.
6.5.4 Non- Commercial Use. A person requesting copies, printouts, or photographs of
public records for a non- commercial purpose may be charged a fee for the records.
A. R. S. Â  39- 121.01; but see Section 6.5.6 infra. An agency may charge a fee it deems
appropriate for copying records, including a reasonable amount for the cost of time,
equipment, and personnel used in producing copies of records, but not for costs of
searching for the records. A. R. S. Â  39- 121.01( D)( 1); Hanania v. City of Tucson, 128
Ariz. 135, 624 P. 2d 332 ( Ct. App. 1980); Ariz. Att’y Gen. Op. I86- 090. If an agency
is producing documents pursuant to a subpoena in a civil action to which the agency
is not a party, the fee is prescribed by A. R. S. Â  12- 351.
6.5.5 Commercial Use. Persons requesting reproductions for a commercial purpose
must provide a statement setting forth the commercial purpose for which the records
are requested. A. R. S. Â  39- 121.03( A).
As used in this Section, commercial purpose is defined as:
the use of a public record for the purpose of sale or resale or for the pur-pose
of producing a document containing all or part of the copy, printout
or photograph for sale or the obtaining of names and addresses from pub-lic
records for the purpose of solicitation or the sale of names and ad-dresses
to another for the purpose of solicitation or for any purpose in
which the purchaser can reasonably anticipate the receipt of monetary gain
from the direct or indirect use of the public record. Commercial purpose
does not mean the use of a public record as evidence or as research for ev-idence
in an action in any judicial or quasi- judicial body.
A. R. S. Â  39- 121.03( D).
Gathering newsworthy facts from public records to include in a newspaper or other
publication is not a commercial purpose. Parks, 178 Ariz. at 605, 875 P. 2d at 838. Upon
being furnished a signed statement, the custodian may assess a charge that includes
the following:
1. A portion of the cost to the [ public body] for obtaining the original or copies of
the documents, printouts or photographs.
2. A reasonable fee for the cost of time, materials, equipment and personnel [ used]
in producing such [ document or] reproduction.
3. The value of the reproduction on the commercial market as best determined by the
public body.
A. R. S. Â  39- 121.03( A). As with non- commercial requests, the determination of the fee
to be charged is made in the first instance by the public body. Among the factors to
be considered in making this determination are ( 1) the time expended in retrieving the
records; ( 2) transportation costs, if any; and ( 3) the actual cost to the public body in
20
terms of special equipment or processing required in preparing the record for release.
If the custodian of a public record determines that the commercial purpose
stated in the statement is a misuse of public records or is an abuse of the
right to receive public records, the custodian may apply to the [ G] over-nor
requesting that the [ G] overnor by executive order prohibit the fur-nishing
of copies, printouts or photographs for such commercial purpose.
Id. Â  ( B).
6.5.6. Free Copies. Certain public records must be provided without charge, namely
those concerning “ a claim for a pension, allotment, allowance, compensation, insur-ance
or other benefits which [ are] to be presented to the United States or a bureau or
department thereof.†A. R. S.   39- 122( A).
6.6 Consequences of Wrongful Refusal to Disclose.
6.6.1 Attorney’s Fees. If a custodian acts arbitrarily, capriciously, or in bad faith in
denying access to a public record, the court may award legal costs, including attorney’s
fees, to the requester. A. R. S. Â  39- 121.02( B). A court will not find denial of access to
be arbitrary or capricious if taken honestly and upon due consideration, even though
the requesting party may believe that the custodian was wrong to deny access. Board
of Regents, 167 Ariz. at 259, 806 P. 2d at 353 ( citing Tucson Public Schs., Dist. No. 1
v. Green, 17 Ariz. App. 91, 94, 495 P. 2d 861, 864 ( 1972)). However, where the cus-todian
refused to disclose an entire file based on a general objection without redact-ing
confidential portions or submitting a redacted version to the court for in camera
review, the court found that the custodian abused his discretion. Cox, 175 Ariz. at 15,
852 P. 2d at 1199.
6.6.2 Damages. A public officer or agency may also be liable for damages that result
from wrongfully denying a person access to public records. A. R. S. Â  39- 121.02( C).
6.7 Preservation, Maintenance, Reproduction, and Disposition of Public Records.
6.7.1 Preservation and Maintenance Generally. “ All records made or received by
public officials or employees in the course of their public duties are the property of
the state.†A. R. S.   41- 1347( A). Each public body and officer is responsible for pre-serving,
maintaining, and caring for the public records within their offices. A. R. S. Â 
39- 121.01( C). Each officer and public body is required by statute to carefully secure,
protect, and preserve public records from deterioration, mutilation, loss, or destruc-tion,
unless the records are disposed of pursuant to A. R. S. Â  Â  41- 1347 and - 1351.
A. R. S. Â  39- 121.01( C); see Section 6.7.5 infra.
The head of each state agency must perform the following duties:
21
1. Establish and maintain an active, continuing program for the economical and ef-ficient
management of the public records of the agency.
2. Make and maintain records containing adequate and proper documentation of the
organization, functions, policies, decisions, procedures and essential transactions
of the agency designed to furnish information to protect the rights of the state and
of persons directly affected by the agency’s activities.
3. Submit to the director [ of the Arizona State Library, Archives and Public Records],
in accordance with established standards, schedules proposing the length of time
each record series warrants retention for administrative, legal or fiscal purposes
after it has been received by the agency.
4. Submit a list of public records in the agency’s custody that are not needed in the
transaction of current business and that are not considered to have sufficient ad-ministrative,
legal or fiscal value to warrant their inclusion in established dispos-al
schedules.
5. Submit to the director lists of all essential public records in the custody of the
agency.
6. Cooperate with the director in the conduct of surveys.
7. Designate an individual within the agency to manage the records management pro-gram
of the agency. The designated individual:
( a) Must be at a level of management sufficient to direct the records management
program in an efficient and effective manner.
( b) Shall act as coordinator and liaison for the agency with the state library.
8. Comply with rules, standards and procedures adopted by the director.
A. R. S. Â  41- 1346( A).
The Director of the State Library, Archives and Public Records is responsible for
( a) establishing standards, procedures, and techniques for effectively managing pub-lic
records and ( b) establishing standards and procedures for preparing schedules for
retaining records of continuing value and promptly and efficiently disposing of records
no longer possessing sufficient administrative, legal, fiscal, research or historical value
to warrant their retention. A. R. S. Â  41- 1345( A)( 1) and ( 3). This statute also makes the
Director of the State Library, Archives and Public Records responsible for the preser-vation
and management of records and for authorizing the destruction or disposal of
records. A. R. S. Â  Â  41- 1345( A), - 1345.01, and - 1347.
6.7.2 Quality and Storage Requirements. All permanent public records must be
“ transcribed or kept on paper or other material which is of durable or permanent qual-ity
and which conforms to standards established by the director of the Arizona State
library, archives and public records.†A. R. S.   39- 101( A). These public records must
also be stored and maintained according to standards established by the Director. Id.
  ( B). A public officer who fails to keep permanent public records in accordance with
the standards established by the director is guilty of a class 2 misdemeanor. Id. Â  ( C).
6.7.3 Size Requirements. All public records must conform to the standard letter size
22
of 8- 1/ 2 inches by 11 inches, unless they are “ engineering drawings, architectural
drawings, maps, computer generated printout[ s], output from test measurement and di-agnostic
equipment, machine generated paper tapes,†or public records required by law
to be a different size or otherwise exempt by law from the standard size requirement.
A. R. S. Â  39- 103. In addition, the Director of the Arizona State Library, Archives and
Public Records may exempt documents from the standard size “ requirement†if “ the
Director finds that the cost of producing a particular type of public record [ in the
standard size] is so great as to not be in the best interests of this state.†Id.   ( B).
6.7.4 Reproduction of Public Records. Each state agency may implement a program
for the reproduction by photography or other method of reproduction on film or elec-tronic
media of records in its custody. A. R. S. Â  41- 1348( A). However, prior to insti-tuting
the program, the agency must obtain approval from the Director of the Arizona
State Library, Archives and Public Records. Id.
6.7.5 Disposition of Public Records. The disposition of public records by the State
or any of its political subdivisions is governed by A. R. S. Â  Â  41- 1347, - 1349, and - 1351.
A State agency may destroy records when the State Library concludes “ that the record
has no further administrative, legal, fiscal, research or historical value.†A. R. S.   41-
1347( B). The agency may obtain approval to destroy records from the Records Man-agement
Division of the State Library on a continuing basis pursuant to a records
retention and disposition schedule or, for records not on a retention schedule, pursuant
to single request form. ( The forms are in Appendix 6.2.)
A public officer or other person having custody or possession of any record for any
purpose, “ who steals, or knowingly and without lawful authority destroys, mutilates,
defaces, alters, falsifies, removes or secretes†all or part of public record, or permits
any other person to do so, is guilty of a class 4 felony. A. R. S. Â  38- 421; see also A. R. S.
  13- 2407 ( making it a class 6 felony to tamper with a public record); Section 2.15( 3),
( 19), ( 22).
23
Appendix 6.1, Records Made Confidential/ Non- Disclosable by Arizona
Statute ( numerical order by title/ statute), and Appendix 6.1.2, Records
Made Confidential/ Non- Disclosable by Arizona Statute ( alphabetical
order by subject matter) may be downloaded as PDFs at:
www. azag. gov/ Agency_ Handbook/ Agency_ Handbook. html
Record Management forms and manuals may be found at:
www. lib. az. us/ records/ forms. cfm
24
Part III
Recent Changes to Arizona’s Public Records Law
Statutory Changes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Recent Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Attorney General Opinions issued since 2001 . . . . . . . . . . . . . . 32
25
STATUTORY CHANGES
ARS section 39- 121.01 amended by:
Laws 2002, Ch. 211, Â  Â  1, 2
♦ Allows public records that are not otherwise available on the public bodies’web
site to be released through the mail.
♦ Requires the custodian responsible to promptly furnish the records.
♦ Specifies that access is deemed denied if custodian fails to promptly respond
to a request for production of a public record.
♦ Allows the custodian to require the person requesting the public records to pay
in advance for any copying and postage charges.
♦ Expands the definition of a seal when used in reference to a paper issuing from
a court or public office to include a stamped seal, a printed seal, a screened seal,
and a computer generated seal.
Laws 2004, Ch. 158, Â  1
♦ Requires a custodian of records of a state agency to provide an index of records
that have been withheld from the requesting person stating the reason each
record is being withheld.
♦ Allows records to be grouped by categories for the purposes of the index.
♦ Provides that the term agency shall have the same meaning prescribed in sec-tion
41- 1001.
♦ Specifically exempts the Department of Public Safety, the Motor Vehicles Di-vision
of the Department of Transportation, the Department of Juvenile Cor-rections,
and the Department of Corrections.
♦ Provides that this does not prevent or require an order compelling a public body
other than an agency to furnish an index.
♦ Specifies that access is deemed denied if the custodian fails to provide an
index of records withheld to the requesting person.
Laws 2006, Ch. 167, Â  1
♦ Clarifies that public records for purposes listed in section 39- 122 OR 39- 127
shall be furnished without charge.
ARS section 39- 121.02 amended by Laws 2006, Ch. 249, Â  1:
♦ Allows the court to award attorney fees to a requestor of public records if the
requestor substantially prevails in a court action for denial of access to records.
♦ Removes the limitation that attorney fees only be awarded if the court deter-mines
that the custodian of such public record acted in bad faith, or in an ar-bitrary
or capricious manner, in denying access to public records.
♦ Specifies that this act does not limit the rights of any party to recover attorney
fees, expenses, and double damages that are authorized by other statutes.
26
ARS section 39- 123 amended by:
Laws 2003, Ch. 106, Â  6
♦ Grants justices, judges, commissioners, and public defenders the same pro-tection
granted peace officers from disclosure of their home address or home
telephone number contained in a personnel file.
♦ “ Commissioner†means a commissioner of the superior court.
♦ “ Judge†means a judge of the United States District Court, the United States
Court of Appeals, the United States Magistrate Court, the United States Bank-ruptcy
Court, the Arizona Court of Appeals, the superior court, or a munici-pal
court.
♦ “ Justice†means a justice of the United States or Arizona Supreme Court or a
justice of the peace.
♦ “ Public defender†means a federal public defender, county public defender,
county legal defender, or county contract indigent defense counsel and in-cludes
an assistant or deputy federal public defender, county public defender,
or county legal defender.
Laws 2004, Ch. 180, Â  1
♦ Prohibits the disclosure of a peace officer’s photograph from his or her per-sonnel
file with the following exceptions:
• A law enforcement agency may release a peace officer’s photograph from
the officer’s personnel file if that officer is charged by complaint, infor-mation,
or indictment of a misdemeanor or felony;
• A police agency may use the officer’s personnel photograph to assist a
person with a complaint against an officer for the purpose of identifying
an officer;
• A photograph may be used if it was obtained from any source other than
a law enforcement agency; or
• A representative of a newspaper requests the photograph for a specific
newsworthy event, unless the peace officer is undercover or scheduled to
be undercover within sixty days; the release of the photograph is not in the
best interest of this state; or a peace officer or prosecutor files an affidavit
with the presiding judge of the superior court in the county in which the
affiant resides, requesting to prohibit the release of the photograph, pursuant
to A. R. S Â  28- 454.
Laws 2006, Ch. 298, Â  4
♦ Grants code enforcement officers the same protection granted peace officers
from disclosure of their home address or home telephone number contained
in a personnel file.
♦ Defines a code enforcement officer as a person who is employed by a state or
local government and whose duties include performing field inspections of
buildings, structures or property to ensure compliance with and enforce na-tional,
state and local laws, ordinances, and codes.
27
Laws 2007, Ch. 141, Â  7
♦ Grants adult or juvenile corrections officers, corrections support staff members,
probation officers, members of the board of executive clemency, law enforce-ment
support staff members, national guard members acting in support of a law
enforcement agency, persons protected under an order of protection or in-junction
against harassment, firefighters assigned to the Arizona counterter-rorism
center in the department of public safety, and victims of domestic
violence or stalking who are protected under an order of protection or injunc-tion
against harassment the same protection granted peace officers, justices,
judges, commissioners, public defenders, prosecutors, and code enforcement
officers.
♦ Defines corrections support staff member, eligible person, law enforcement
support staff member, and peace officer.
ARS section 39- 124 amended by:
Laws 2003, Ch. 106, Â  7
♦ Makes the knowing release of the home address or home telephone number of
a peace officer, justice, judge, commissioner, public defender, or prosecutor by
any person employed by a state or local government entity with intent to hin-der
an investigation, cause physical injury, or cause property damage a class
6 felony.
Laws 2004, Ch. 180, Â  2
♦ No longer requires that a peace officer be serving in an undercover capacity
or be scheduled to serve in an undercover capacity within sixty days as a pre-requisite
to prohibit the release of a photograph of a peace officer with the in-tent
to hinder an investigation, cause physical injury to a peace officer or the
peace officer’s immediate family, or cause damage to the property of a peace
officer or the police officer’s immediate family.
Laws 2006, Ch. 298, Â  5
♦ Includes code enforcement officer.
♦ Defines code enforcement officer as a person who is employed by a state or
local government and whose duties include performing field inspections of
buildings, structures or property to ensure compliance with and force nation-al,
state and local laws, ordinances, and codes.
Laws 2007, Ch. 141, Â  8
♦ Grants adult or juvenile corrections officers, corrections support staff members,
probation officers, members of the board of executive clemency, law enforce-ment
support staff members, national guard members acting in support of a law
enforcement agency, persons protected under an order of protection or in-junction
against harassment, firefighters assigned to the Arizona counterter-rorism
center in the department of public safety, and victims of domestic
violence or stalking who are protected under an order of protection or injunc-tion
against harassment the same protection granted peace officers, justices,
28
judges, commissioners, public defenders, prosecutors, and code enforcement
officers.
♦ Defines corrections support staff member, eligible person, law enforcement
support staff member, and peace officer.
ARS 39- 126: Federal risk assessments of infrastructure; confidentiality
Added by Laws 2003, Ch. 118, Â  1
♦ Excludes from public inspection risk assessments 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.
ARS section 39- 127: Free copies of police reports and transcripts for crime
victims; definitions
Added by Laws 2006, Ch. 167, Â  2
♦ Expands victim’s rights to public records by allowing the victim or family
member one free copy of the police report and prescribes that criminal offense,
immediate family, and victim have the same meaning as outlines under Crime
Victims’ Right Statutes.
Amended by Laws 2007, Ch. 290, Â  11
♦ Requires, on request of the victim, the court to provide to the victim or
immediate family member, if the victim is killed or incapacitated, a free copy
of a case transcript arising out of the offense committed against the victim
for the purposes of litigation or representation of a victim’s right.
RECENT CASE LAW
Phoenix Newspapers, Inc. v. Keegan, 201 Ariz. 344, 35 P. 3d 105 ( App. Div. 1 2001)
♦ 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.
♦ Trade secrets are protected by the confidentiality exception to disclosure under
public records law.
♦ Test- related documents that qualify as public records are subject to the public
records law. Questions from first administration of statewide academic test to
high school students were not trade secrets because they did not reveal the
methodology for engineering the test. Did not compel disclosure of anchor
questions that would reappear on subsequent tests.
♦ Best interests of the state is not confined to the narrow interest of the either the
official who holds the records or the agency he or she serves, but includes the
overall interests of the government and the people.
♦ Public interest determination includes consideration of how disclosure would
adversely affect the agency’s mission as well as other ways in which the pub-
29
lic would be affected.
♦ Court must evaluate carefully the public interest that plaintiff seeks to vindi-cate
in requesting the documents.
♦ To justify withholding documents, state’s interest must outweigh the policy of
open access as stated in public records law.
A. H. Belo Corp. v. Mesa Police Department, 202 Ariz. 184, 42 P. 3d 615 ( App. Div. 1
2002)
♦ In balancing considerations such as privacy against the general public interest
in disclosure, it is relevant to examine whether the information in question is
available through alternative means.
♦ Arizona imposes a presumption in favor of disclosure of public records; to de-fend
a refusal to release a public record, the government must demonstrate that
the policy in favor of public disclosure and access is outweighed by consid-erations
of confidentiality, privacy, or the best interests of the state.
♦ Family’s privacy concerns outweighed the presumption favoring disclosure of
public records, and thus city police department was not required to release au-diotape
of emergency assistance call in which child was heard crying and
whimpering; information regarding the call was provided through a transcript
of the call, and there was not evidence that disclosure of the audiotape advanced
the purpose of the Public Records Act in any way.
♦ Unless the government puts forth an interest that justifies withholding access
to a public record, a person or entity seeking access to the record need not
demonstrate what purpose such access would serve.
♦ Unless the government puts forth an interest that justifies withholding access
to a public record, it does not matter that the information contained within the
record is available by alternative means.
♦ Unless the government puts forward an interest that justifies withholding ac-cess
to a public record, a person or entity seeking access to the record need not
demonstrate what purpose such access would serve.
Primary Consultants, LLC v. Maricopa County Recorder, 210 Ariz. 393, 111 P. 3d 435
( App. Div. 1 2003):
♦ Access to public records may be limited when a statute restricts access or
when the custodian of the records appropriately determines that countervail-ing
interests such as confidentiality, privacy, or the best interests of the state
warrant denial of the records request.
♦ Request by political consulting firm for copies of requests of others for voter
data did not constitute a request for voter records, but constituted a request for
standard public records.
♦ Voter records constitute public records, but are subject to greater restrictions
than other public records.
♦ Political consulting firm’s status as a for- profit business and its use of voter in-
30
formation obtained from public records in furtherance of its business did not
constitute a commercial use of voter information so as to preclude firm from
obtaining such records under public records laws; under the public records
statute, the denial of records requests for commercial purposes was aimed at
the direct economic exploitation of public records, not at the use of informa-tion
gathered from such records for one’s trade or business.
Griffis v. Pinal County, 215 Ariz. 1, 156 P. 3d 418 ( Ariz. 2007)
♦ The Arizona Supreme Court held that e- mails generated or maintained on a
government- owned computer system are not automatically public records.
♦ E- mail messages that relate solely to personal matters that have no relation to
official duties do not qualify as public records or other matters under the pub-lic
records law.
♦ When a government entity withholds documents generated or maintained on
a government- owned computer system on the grounds that the documents are
personal, the requesting party may ask the trial court to perform an in camera
inspection to determine whether the documents fall within the public records
law.
Phoenix Newspapers, Inc. v. Ellis, 215 Ariz. 268, 159 P. 3d 578 ( App. Div. 1 2007)
♦ The Arizona Court of Appeals held that under the public records law, notice
of claim that high- school student's attorneys filed with the school district re-garding
alleged sexual assault of student by janitor was “ public record,†al-though
notice was submitted in confidence, and although notice was deemed
denied by school district; district’s potential liability was of concern to pub-lic,
and amount that student would have settled for could have been of great
interest to public if amount actually awarded or paid were much higher.
♦ The Arizona Court of Appeals ordered the trial judge to review the claim to de-termine
whether any information in the notice of claim, in addition to the stu-dent’s
name, should be redacted.
West Valley View, Inc. v. Maricopa County Sheriff’s Office, No. CV- 06- 0549, ___ P. 3d
___, 2007 WL 2325602 ( Ariz. App. Div. 1, August 16, 2007)
♦ Arizona Court of Appeals held that A. R. S.   39- 121.01( D) requires the Sher-iff’s
Office to comply with the newspaper’s ongoing request for copies of
news releases as they are issued. Nothing in the statute precludes an ongoing
request for disclosure of a narrowly defined, clearly identifiable category of to-be-
created documents that the public agency concedes are public records.
♦ The court applied the common definition of “ prompt,†which means “ quick to
act or to do what is required,†or “ done, spoken, etc. at once or without delay.â€
Webster’s New World Dictionary 1137 ( 2d ed. 1980).
♦ Press releases must be made available to the newspaper on the same day that
it distributes them to other news media.
31
♦ Sheriff’s Office’s refusal to respond to the newspaper’s ongoing requests for
copies of news releases and its stubborn persistence in its position that it need
not comply with the requests was arbitrary and capricious and made in bad
faith.
♦ Court determined that newspaper was entitled to attorney fees.
ATTORNEY GENERAL OPINIONS ISSUED SINCE 2001
Opinion I04- 001: As a public body created by statute, the Joint Underwriting Asso-ciation
is subject to all the public process laws applicable to the Department of In-surance,
including state procurement, public records, open meeting, personnel code,
fiscal controls, and governmental immunity provisions.
32
Part IV
Arizona Revised Statutes
Title 41. State Government
Chapter 8 Agencies of the Legislative Department
Article 5 Office of Ombudsman– Citizens’Aide
41- 1376.01. Additional powers and duties; definitions . . . . . . . . . . . . . . 34
33
41- 1376.01. Additional powers and duties; definitions
A. In addition to the powers and duties prescribed in section 41- 1376, the ombuds-man-
citizens aide shall appoint two assistants, one of whom shall be an attorney,
to help the ombudsman- citizens aide investigate complaints relating to public ac-cess
laws involving an agency. The assistants shall train public officials and edu-cate
the public on the rights of the public and the responsibilities of public agencies
under the public access laws. The assistants shall prepare interpretive and educa-tional
materials and programs in cooperation with the ombudsman- citizens aide
and shall distribute to elected or appointed public officials the public access laws
and educational materials concerning the public access laws.
B. The annual report of the ombudsman- citizens aide shall include the following in-formation
about public access:
1. The number of inquiries that are received from the public, the media and gov-ernment
agencies.
2. The number of inquiries that are received about state agencies, county agen-cies,
city or town agencies, school districts and other local jurisdictions.
3. The number of requests that are received concerning public records and pub-lic
meetings.
4. The number of investigations that are conducted and the results of the inves-tigations.
C. For investigations made pursuant to this section, the ombudsman- citizens aide
may:
1. Make inquiries and obtain information considered necessary subject to the re-strictions
in section 41- 1377.
2. Enter without notice to inspect agency premises with agency staff on the prem-ises.
3. Hold hearings.
4. Notwithstanding any other law, have access to all agency records, including
confidential records, except:
( a) Sealed court records without a subpoena.
( b) Active criminal investigation records.
( c) Records that could lead to the identity of confidential police informants.
( d) Attorney work product and communications that are protected under at-torney-
client privilege.
( e) Confidential information as defined in section 42- 2001, except as provid-ed
in section 42- 2003, subsection M.
( f) Information protected by section 6103( d), 6103( p) or 7213 of the internal
revenue code.
( g) Confidential information relating to section 36- 2903, subsection I, section
36- 2917, section 36- 2932, subsection F or section 36- 2972.
( h) Confidential information relating to sections 36- 507, 36- 509 and 36- 2220.
( i) Documents that are protected by section 214 of the critical infrastructure
information act of 2002 ( 6 United States Code section 133a) or by 49
34
Code of Federal Regulations Part 1520.
( j) Information that is protected by section 214 of the critical infrastructure
information act of 2002 ( 6 United States Code section 133a) or 49 Code
of Federal Regulations part 1520 or critical infrastructure information as
defined by section 41- 1801 on government owned facilities that are clas-sified
as critical infrastructure by the federal government or as defined by
section 41- 1801.
5. Issue subpoenas if necessary to compel the attendance and testimony of wit-nesses
and the production of books, records, documents and other evidence to
which the ombudsman- citizens aide may have access pursuant to paragraph 4
of this subsection. The ombudsman- citizens aide may only issue a subpoena
if the ombudsman- citizens aide has previously requested testimony or evi-dence
and the person or agency to which the request was made has failed to
comply with the request in a reasonable amount of time.
D. It is contrary to the public policy of this state for any agency or any individual
acting for an agency to take any adverse action against an individual in retaliation
because the individual cooperated with or provided information to the ombudsman-citizens
aide or the ombudsman- citizens aide’s staff.
E. For the purposes of this section:
1. “ Agency†has the same meaning prescribed in section 41- 1371 but includes a
public body as defined in section 39- 121.01, subsection A, paragraph 2.
2. “ Public access laws†means:
( a) Title 39, chapter 1.
( b) Title 38, chapter 3, article 3.1.
( c) Any other state statute or rule governing access to public meetings or pub-lic
records.
35
36