ASU Office of General Counsel--Section Title:
Briefing Papers

PUBLIC RECORDS ISSUES

Arizona Public Records Law. This Arizona statute, enacted in 1901, was taken from a California provision.
[ A.R.S. § 39-101 to -161]
1. Duty to maintain records. "All officers and public bodies shall maintain all records, including records as defined in § 41-1350, reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by funds from the state or any political subdivision of the state, or expending funds provided by the state or any political subdivision of the state." Employees of public bodies and public officers are bound by public records laws. ASU is responsible for preserving, maintaining and securing its own records. [ A.R.S. § 39-121.01(B) (C)]
2. Definition of "public record." Although the term is not defined by statute, the Arizona Supreme Court has defined public records as "all records required to be kept under A.R.S. § 39-121.01(B)." In another case the court opined that a public record " is one made by a public officer in pursuance of a duty, the immediate purpose of which is to disseminate information to the public, or to serve as a memorial of official transactions for public reference." Otherwise stated, the court has observed that few, if any, records in the possession or control of a public officer will not be deemed to be public records. Also, this term has been expansively interpreted by the Office of the Attorney General in its published opinions.
  Records include books, papers, maps, photographs, or other documentary materials regardless of physical form, including electronic information, made or received by any governmental agency in pursuance of law or in connection with the transaction of public business. [ A.R.S. § 41-1350]
3. Inspection of public records. The statute seeks to increase public access to government information and to make government agencies accountable to the public by granting a right of access to records concerning an official's or a public agency's activities.
  1. Any "person" has the right at all times during office hours to inspect public records and other matters in the custody of any officer of a public body. A person's right to public records is not conditional on his or her showing, or a court finding, that the documents are relevant to anything. The custodian of the records must resolve whether the document(s) requested is a public record and whether any authorized grounds exist for denying public inspection.
  2. Any person may request that the custodian mail a copy of any public record not otherwise available on the public body's Web site.
  3. Electronic information. There are limited authorities addressing access to electronic data. The statute provides in pertinent part that the public may "request to examine or be furnished ... printouts ... of any public record." Accordingly, the Arizona Attorney General's Office has concluded that "at least the product of electronic databases is a public record, although the disks, software, database, or raw information itself probably need not be made accessible to the public." Also, the Arizona Court of Appeals has ordered release of computer backup tapes of a public agency including e-mail communications of employees. [Star Publishing v. Pima County Attorney's Office, 891 P.2d 899 (Ariz. App. 1994)]
  4. Denying public inspection. There are court-created exceptions as well as statutory mandates to observe. However, it is necessary to note that if a custodian of records is found to have acted 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 prevailing party.
    1. The first exception is if the release of the record would constitute an invasion of personal privacy and that invasion would outweigh the public's right to know. (See ABOR Policy 6-912, ASU SPP 1101, and ASU ACD 811).
    2. A second exception exists if disclosure is detrimental to the best interests of the state. Note that this exception is a difficult test to meet, because it must be established that the effectiveness of the public body will be seriously impaired in the performance of its duties if the information is disclosed and not merely an increase in cost or inconvenience to the agency. Again, a balancing test will be applied.
    3. A final category of exceptions includes express state or federal designation of confidentiality by statute (e.g. student educational records, adoption records, minutes of executive sessions, working papers and other audit files maintained by the Auditor General, etc.). Indeed, there are over 300 Arizona statutes that address confidentiality of records. Most notably, in 2001, the Arizona Legislature excepted certain intellectual property in unfunded grant proposals and proprietary data or research material provided to a university by a third party who has an expectation that the data or material will remain confidential (A.R.S. § 15-1640). A comprehensive list of the Arizona statutes that may require that all or a portion of government records be protected from public disclosure is included in Appendix 6.1 of the Arizona Attorney General Agency Handbook.
  5. A person who has requested to examine or copy public records and been denied access or the right to copy records may appeal the demand through a special action to the court. The court may award attorney costs if the person seeking public records has substantially prevailed.
4. Charges for Copies.
  1. Non-commercial Use. A person requesting copies of public records for non-commercial purposes may be charged a fee. ASU may charge a fee it deems appropriate for copying records, including a reasonable amount for the cost of equipment and personnel used in producing copies, but not for the cost of searching for the records. [Arizona Agency Handbook § 6.5.4]
  2. Commercial Use. A person requesting copies of public records for a commercial purpose must provide a statement setting forth the commercial purpose for which the records are requested. The public records law does not require a statement from a requestor that the request is not made for a commercial purpose. Upon being furnished a written statement, the university employee who serves as custodian of the requested records may assess a charge which includes the following:
    1. a portion of the cost to ASU of obtaining the original or copies of the records;
    2. a reasonable fee for the cost of time, materials, equipment and personnel used in producing such record or reproduction; and
    3. the value of the record or reproduction in the commercial market as best determined by the public body.
  3. The current schedule of fees charged by the ASU Office of General Counsel is available at http://www.asu.edu/counsel/policies/publicrecordsrequest.html.
  4. The public body may require any person requesting that the custodian mail a copy of any public record to pay in advance for any copying and postal charges.
Avoid Public Record Lore. Please keep the following general principles in mind.
1. Records marked "draft" or "confidential" are not exempt from production merely due to the existence of this legend. An independent basis for denying public inspection must be established.
2. A public record request need not be labeled as such, and it need not even state that it is made pursuant to the public records law.
3. In Arizona public record requests must be acknowledged and responded to within a reasonable period of time. What is a reasonable time depends on the facts and circumstances of each request -- most notably the scope of the inquiry. In any event, access to public record is deemed denied if a custodian fails to respond promptly to a request for production of a public record. [ A.R.S. § 39-121.01 (E)]
4. Although the Federal Freedom of Information Act is not directly applicable to ASU, the Arizona Supreme Court has held that federal cases interpreting the law guide Arizona courts in construing Arizona's public records statute. [Arizona Agency Handbook, § 6.5.5]

Revised September 22, 2006