Appeals Court rules Arizona open records outweighs claim of confidentiality

PHOENIX -- Arizonans are legally entitled to know what their public officials have been doing, even if it's only going with the security detail to the cleaners, the state Court of Appeals ruled Thursday.

In a decision with wide-reaching implications, the judges unanimously concluded that the requirements of Arizona law for open records outweighs any general claim of confidentiality.

The judges said public officials and the security officers who protect them are entitled to withhold certain events or details that could pose a security risk. But they said the burden is on the public official to prove that risk, not on the person soliciting the record to prove otherwise.

And the court said the fact it would be inconvenient to go through the records to figure out what is and is not subject to disclosure is insufficient to deny the entire record to the public.

The new ruling involves a dispute between Judicial Watch and the city of Phoenix over the details of the activities of Mayor Phil Gordon. But the decision, unless overturned, has statewide implications.

It also comes amid perennial requests by various media outlets to get specifics on the activities of Gov. Jan Brewer. Those, however, have been met with the governor's staff saying the public is entitled solely to a list of events which are open to the public.

But Brewer is not alone in that attitude. Governors from both parties have denied similar requests for years.

Gregory Collins, who represents Judicial Watch, said the ruling is significant.

"This case I would think stands for that fact that government needs to be transparent,' he said. "And when government isn't transparent and it doesn't tell the public what it's doing, that's what the court system is for.'

City attorneys had no immediate comment.

Judicial Watch sought the activity logs created by the police department detail assigned to protect Gordon from the time he leaves home each morning until he returns.

City officials agreed to make the mayor's calendar available. But they refused to provide detailed logs which also include unscheduled events, including personal business like shopping, having lunch and doing personal errands.

In arguments to the court, attorneys for the city argued that the information should be withheld because it could be used to undermine the mayor's safety. They also said the information was private and confidential and that it was protected by the "deliberative process' privilege which shields from scrutiny activities involved in reaching decisions.

Presiding Judge Ann Scott Timmer, writing for the court, said while Arizona's public records law favors openness, there are limits "to avoid the infliction of substantial and irreparable private or public harm.'

She said once a request for public records is made, a court must first determine if the record is public. If that is the case, Timmer, said, then a judge must determine whether issues of privacy, confidentiality or the best interests of the state outweigh the policy favoring disclosure.

But she said the burden is on the government to overcome that presumption of disclosure.

"The city's security-related and confidentiality interests do not preclude inspection of worksheets entirely if the information affecting these interests can be redacted,' Timmer wrote.

She also said that the worksheets contain more information than the calendars the city produced, even after confidential or security information was redacted.

And Timmer said that even city lawyers acknowledged that not everything in the worksheets is related to security or is confidential.


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