Arizona Supreme Court Holds That When A Government Entity Responding to a Public Records Request Withholds Documents Generated or Maintained On a Government E-mail System on the Grounds That the Documents Are Personal, the Requesting Party May Ask the Trial Court to Perform an In Camera Inspection to Determine Whether the Documents are Purely Personal.

Phoenix Newspapers, Inc. (“PNI”) filed a public records request with Pinal County pursuant to A.R.S. § 39-121 to –121.03 seeking release of all e-mails sent to or received by former Pinal County Manager Stanley Griffis. Pinal County provided numerous e-mails but initially withheld others claiming they were personal or confidential. When PNI threatened to sue, Pinal County agreed to release the remaining e-mails. Griffis then obtained a preliminary injunction blocking release of the e-mails and PNI moved to intervene and dissolve the injunction. The superior court granted PNI’s motion holding that all documents on a governmental entity’s computer are presumed to be public records. The court of appeals reversed, holding that personal e-mails are not public records under Arizona’s public records law and need not be disclosed. The Supreme Court granted PNI’s petition for review, reversed the superior court’s ruling, vacated the opinion of the court of appeals, and remanded for in-camera inspection by the superior court.

The Supreme Court first reaffirmed the definition of public record set forth in Salt River Pima-Maricopa Indian Community v. Rogers, 168 Ariz. 531, 815 P.2d 900 (1991), noting that the definition is broad but not unlimited. Purely private documents with no substantial nexus with a government agency’s activities do not qualify as public records. Moreover, mere possession of a document by a public officer or agency does not by itself make that document a public record. Instead, determining whether a document is a public record requires a content-driven inquiry. As a result, the Court held that it would be inappropriate to apply a presumption of disclosure until the nature of the document can be determined from its content.

The Supreme Court fashioned a two-step process for determining whether the public records law requires disclosure of a particular document. First, where there is a “substantial question as to the threshold determination of whether the document is subject to the statute,” the trial court should perform an in camera inspection to determine whether the document is a public record. The burden for raising a substantial question can be met by showing that a governmental agency or public official has withheld documents generated or maintained on a government-owned computer. If, after in camera review, a document is determined to be within the scope of the public records statute, the “presumption favoring disclosure applies and, when necessary, the court can perform a balancing test to determine whether privacy, confidentiality, or the best interests of the state outweigh the policy in favor of disclosure.”

Chief Justice McGregor authored the unanimous opinion.