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Public Records--A.R.S. § 39-121.02(B) Attys Fees & Costs to Records Seeker who “Substantially Prevailed”

Posted by Ted A. Schmidt | Aug 26, 2021 | 0 Comments

Public Records--A.R.S. § 39-121.02(B) Attys Fees & Costs to Records Seeker who “Substantially Prevailed” 

American Civil Liberties Union v. Arizona Dept. of Child Safety, No. CV 20-0030-PR (August 25, 2021) (J. Beane)


The American Civil Liberties Union of Arizona [ACLU] sent three public records requests to the Department of Child Safety [DCS] seeking records concerning child welfare services. The first request set forth 30 categories of documents. DCS provided documents for two of the thirty requests, ignored the others as well as two subsequent and additional records requests.  After continued pressure, including the filing of this Special Action Requesting Fees and Costs under  A.R.S. § 39-121.02(B) DCS produced 500 pages of additional documents partially in response to some of the 30 items requested. DCS objected to the remaining items requested.  The trial court denied the request for additional documents without determining whether or not the CHILDS database was a public record and ruled ACLU did not substantially prevail so no fees and costs.
The Arizona Court of Appeals found a public records seeker cannot require DCS to “tally and compile information in CHILDS” yet also determined CHILDS data base was a public record. The case is sent back to the trial court where ACLU is now found to have “substantially prevailed” and awarded  $239,842.21  in  attorney  fees  and  costs, and DCS appealed. The court of appeals reversed the trial court on this issue.  The Arizona Supreme Court , affirmed in part, vacated in part, and remanded with instructions to the trial court while vacating in part the court of appeals opinion.
In vacating part of the court of appeals decision, the supreme court strongly emphasized the importance of giving the trial court broad discretion in determining whether a party should be awarded fees and costs. This is essentially a factual determination and the trial judge is in the best position to evaluate the evidence and make these decisions. 
The  trial  court  must  examine  all  of  the  contested 
requests made by ACLU-AZ and determine whether it 
was more successful than not in obtaining the records
that were contested by DCS before ACLU-AZ filed its 
special action.  The trial court should look at ACLU-AZ's
overall success  in  the  litigation,  not  simply  the 
 number  of  documents  produced compared to the 
number of documents requested.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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