ÃÛÌÒÓ°ÏñAV

In a wide-ranging decision involving a University of Arizona case, the state's high court also gave new rights to those whose demand for public records is frustrated by administrative delays and denials, including, in some cases, getting their legal fees paid.

Perhaps most importantly, the justices also concluded that trial judges should give no deference to a public agency's determination that a particular document is not subject to disclosure.

Instead, Justice Clint Bolick, writing for the unanimous court, said it is up to judges, faced with a complaint that a record has been wrongfully withheld, to make their own determinations if any of the exceptions to the state's Public Records Law apply. He said that can be accomplished by judges conducting an "in camera'' inspection of the documents, which is a private review by the judge in court chambers, before reaching a decision. 

But the high court also dealt a blow of sorts to some who pursue public records.

The justices said Arizona law allows those who prevail to get their legal fees paid only if they file suit — even if they have had to hire an attorney to convince an agency to surrender the documents. It's only when a case goes to court that the agency can be forced to pay the challenger's costs.

Bolick conceded that may not be fair — or even within the spirit of the public records law and its presumption in favor of disclosure.

"Public entities lack a financial incentive to fully and promptly comply with public records requests about the threat of attorney fees for incorrectly denying the request,'' he wrote. "Members of the public who cannot afford to file a lawsuit may be denied their right to inspect public records.

"But these concerns are for the Legislature to address, not the court," Bolick said. 

As to the specifics here, Friday's ruling is a partial victory for Matthew Abraham, who had been rejected in his bid for certain program positions at the University of Arizona. It sends his case back to a trial judge who denied his access to some documents, to take another look — using the guidelines the justices outlined — to determine if they are public records.

Abraham had questioned whether the UA was complying with Proposition 107, a 2010 voter-approved amendment to the Arizona Constitution which prohibits the state from granting preferential treatment or discriminating against any individual on the basis of race, sex, color, ethnicity or national origin in public employment, education or contracting. That measure also covers the state university system.

He filed a series of public records requests related to hiring and appointment practices as well as documents related to the search and selection process.

Friday's ruling concludes the UA's decision to destroy an audio recording amounted to an illegal denial of records.

The justices also opened the door for Abraham to collect his legal fees, not only for the records that were denied after he eventually filed suit but also for those that were withheld before he went to court.

But the ruling sends the entire case back to the trial court to determine — independent of any claim by the university — whether the records he sought are, in fact, public. That will determine if Abraham "substantially prevailed'' in his litigation and is entitled to have the UA pay all of his costs.

It also still leaves unresolved Abraham's separate claims against the university about whether he was improperly denied promotions and, ultimately, whether his firing in April was legal. A hearing is set for Nov. 20 in Pima County Superior Court.

All that, however, is only tangential to Friday's ruling about the records Abraham sought.

According to the court, the university did produce some records in full, some with partial redactions, and withheld some outright, claiming concerns of confidentiality, privacy or "the best interests of the state.'' That last category is kind of a catch-all that agencies can use by claiming there would be specific, material harm that outweighs the public's right to know.

But it is not absolute, with the burden on the state agency to show what harm might result. That ultimately results in judges having to do a balancing test after hearing arguments and personally reviewing the withheld materials.

In this case, the UA also denied Abraham's request for the audio recording of an Oct. 19, 2019 meeting of the Committee of Eleven, an independent and elected body composed of faculty members to research and advise on university issues.

Instead, the university indicated it would use the recording for "transcription purposes only'' to create minutes of the meeting and that it would be "deleted shortly after.'' It also offered to let Abraham listen to the recording, but without obtaining a copy, an offer he rejected.

That resulted in a demand letter from Abraham's attorney in October 2020. As a result, the UA produced some records, eventually, but also said the recording was "no longer available'' and that other records were still being "withheld or redacted.''

In September 2021, Abraham filed suit to compel production. It was not until November that the university produced more than 1,700 pages of additional documents, though some were duplicates of each other.

Pima County Superior Court Judge Wayne Yehling ruled that while the university initially "abused its discretion'' before Abraham got a lawyer, it later "cured its impermissible actions'' by providing documents.

But the judge also found the UA properly redacted and withheld other records. Yehling also denied Abraham's bid for legal fees because he had gotten everything that the judge said he was entitled to get before he sued.

Bolick, writing Friday's decision, said courts have to be bound by the fact that, in Arizona, there is a "strong presumption in favor of disclosure.''

"The obligation of the public body is to promptly furnish public records that are eligible for production,'' he wrote. He said that's why judges can't simply accept the claims by a government entity that a record is not subject to disclosure.

"A standard of review that defers to agency determinations, especially over whether a nondisclosure or redaction serves the best interests of the state would defeat the strong presumption of transparency and public access embodied in our public records statutes,'' Bolick wrote. He said that requires a judge to do what was not done in this case: review the actual records in making a decision of whether they are public.

Bolick also specifically rejected the argument by the UA that Abraham wasn't denied a copy of the audio recording because it no longer existed.

"Post-request destruction of a document is the ultimate denial,'' Bolick said, noting that Abraham had requested the recording, was told he could only listen to it, and, when that was rejected, the university destroyed it "ostensibly pursuant to its retention policy.''

"The destruction of the recording seems an obvious violation of statutes,'' Bolick wrote. He said once Abraham requested it the university "had an obligation to maintain it.''

The justice rejected the excuse that the university destroyed the tape in accordance with its own rules on how long certain materials must be kept.

"An agency's retention policy must yield to the statute,'' Bolick said.

The overall issue of legal fees is a bit muddier, with the justices saying those who haven't sued are not entitled to reimbursement.

But Bolick said that if Abraham ultimately succeeds in getting more documents, the fact that he eventually did sue could entitle him to get his legal fees paid — even for the time his lawyer spent pursuing them before the lawsuit was filed.

"A contrary reading would frustrate the purposes of the public records laws by allowing a public entity to stonewall a request until just before a lawsuit is filed without financial penalty,'' he wrote.