Civil Procedure—Discovery—Public Records Request—“Prompt” Disclosure

McKee v. Peoria Unified School District, 701 Ariz. Adv. Rep. 11 (App. Div. I, December 2, 2014) (J. Cattani)

TIMLINESS OF PUBLIC RECORD PRODUCTION DETERMINED BY SCOPE OF ENTIRE REQUEST/NATURE & PURPOSE OF DOCUMENT DEFINE ITS STATUS

Plaintiff was terminated from his employment as a physical education teacher when a child in his class drowned. Prior to his termination hearing he made a public records request for six distinct categories of records held in different departments at the school district. Eleven business days after serving the request for records plaintiff filed suit against the school district alleging, among other things, failure to timely produce public records. Twenty-four business days after the request for documents was served all records the district had related to the six categories had been produced.  All the documents produced were subject to review and redaction to protect privacy and confidentiality rights.  Notes of witness interviews were not initially located or produced; it took two separate additional requests to prompt the ultimate production of these notes. The final production occurred the day before the plaintiff's termination hearing. The superior court found the production was not “prompt” and awarded the plaintiff $67,500 in attorneys' fees Ariz. Rev. Stat. sec. 39-121.02(B) (authorizing award of attorneys' fees to individual who “substantially prevailed" in public records suit). The Arizona Court of Appeals reversed.

"Access to a public record is deemed denied if a custodian fails to promptly respond to a request for production of a public record." A.R.S. sec. 39-121.01(E). However, nowhere has the legislature defined “promptly.” The court of appeals found that where multiple and distinct requests for documents are served upon a public entity, whether or not the response is “prompt” is measured by the reasonable time it would take to gather all of the information for all the requests from all sources within the entity. The public entity does not fail to promptly respond by failing to produce the most readily available items sooner than the more difficult documents to assemble.  It is appropriate to allow time for all the records to be assembled, reviewed and redacted.  Here 24 days was prompt.

Additionally, not all records prepared by a public entity are public records of that entity. The “nature and purpose” of the document will identify the status of a document. While there is a strong presumption that a record is public and must be produced, there must also be a “substantial nexus” between the document and the entity's activities to constitute a public record of that entity.  Here a “log” of student names and contact information prepared for the police in furtherance of its investigation was a police and not a district record even if district employees facilitated the creation of the list. Thus where the district denied possession of the list, it was not incumbent upon the district to try and secure a copy of it from the police to produce to plaintiff.

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