Silverman v. Ariz. Dept. of Economic Sec., No. CV-23-0181-PR (June 3, 2024) (J. Timmer) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2024/CV230181PR.pdf

INVESTIGATIVE JOURNALIST MAY QUALIFY UNDER BONA FIDE RESEARCH EXCEPTION TO CONFIDENTIALITY PROTECTION OF VULNERABLE ADULT RECORDS

Plaintiff, a free lane investigative journalist whose work focuses on issues affecting those with intellectual and developmental disabilities, made a public records request of the Arizona Department of Economic Security [ADES] for Adult Protective Services [APS]. The requested asked for  “reports, investigations and other materials that provided the data for APS quarterly reports from April 2019 to 2020.” ADES denied the request arguing.

A.R.S. § 46-460(A) prohibits public disclosure of these records. Plaintiff claimed the “Bona Fide Research” Exception applies here requiring release of the records See A.R.S.§ 46-460(D)(8).  The trial court agreed that the bona fide research exception applied and ordered production of the records after proper redaction denying ADES Motion to Dismiss. ADES appealed and the Arizona Court of Appeals defined the exception and remanded the case to the trial court for a determination of whether the exception should apply based upon the facts. The Arizona Supreme Court affirmed the trial court in part, reversed in part and remanded the case to the trial court while vacating the court of appeals decision.

Generally public records are subject to inspection See A.R.S. § 39-121. A.R.S. § 46-460(A), however protects APS records as confidential. A.R.S. § 46-460(A).  A.R.S.§ 46-460(D)(8) provides an exception to the protection for bona fide research, while not clearly defining what “bona fide research” is.  The Supreme Court defined the term as follows:

In sum, we conclude that “research” under § 46-460(D)(8)

means engaging in a study to acquire more knowledge, discover new

facts, or test new ideas concerning reporting or stopping the abuse,

exploitation, or neglect of vulnerable adults. “Research” does not

include gathering information merely to satisfy a person's curiosity or to

report it to others, including news publication subscribers. The

researcher must request the records to study reporting or stopping the

abuse, exploitation, or neglect of vulnerable adults with the goal of using

the record information to reach conclusions regarding those topics.

Also, unless essential to the research and subject to the approval of the

ADES director, the bona fide research exception does not entitle a

researcher to review records if such review would enable the

identification of vulnerable adults, service providers, or reporters of

abuse, exploitation, or neglect.

“Bona fide” is defined as “made in good faith, , without fraud or deceit, sincere, genuine.”  Any person, not just investigative journalists, may meet this definition.

ADES is authorized to determine if a person requesting records is engaged in bona fide research and may develop rules for granting and denying such requests. ADES also has the common law authority to deny a request that meets the exception should it find “producing the requested records would harm important public policy interests,” or if the request is too burdensome. 

The trial court's denial of ADES' motion to dismiss is affirmed, judgment for plaintiff is reversed and the matter is remanded with direction that the trial court apply the above definition of bona fide research to plaintiff's credentials and determine if the exception should apply here.