Arizona Court of Appeals Division Two holds that in an action to compel a response to a public records request, a party may “substantially prevail” for the purposes of attorneys’ fees and costs only to the extent an action is necessary to accomplish the purpose of the original records request.

A company made a broad public records requests to a County Assessor.  The Assessor responded by directing the company to the Assessor’s website.  The company filed a special action to compel, arguing that the response was insufficient.  After a hearing, the trial court ordered a production that “significantly expanded” the scope of the company’s original request. 

The Assessor moved to amend, arguing that the ruling required the disclosure of more data than the statute required.  The Assessor also submitted a notice of compliance with the original document request.  The company argued that the Assessor still had not produced a variety of data.  After another hearing, the court ruled that the Assessor’s search and response were reasonable.

The company moved for reconsideration, arguing that the response was incomplete and that the company was entitled to attorneys’ fees because the lawsuit was necessary to compel disclosure.  The court ordered a meet and confer but the parties filed a joint report that they still had disagreements over the scope of the “significantly expanded” disclosure required by the court’s initial order.  The court referred the dispute to a special master and then adopted the special master’s factual findings regarding compliance.  Although some records were not produced, the special master and court determined that the Assessor had made a good-faith response.   

The court awarded fees and costs under A.R.S. § 39-121.02 after determining that the company had “substantially prevailed” up through the time of the joint report.  The court determined that after that time, the company did not prevail in obtaining additional material.

The Court of Appeals vacated, holding that the trial court failed to consider two factors in determining who substantially prevailed.  First, it failed to consider whether the production obtained was beyond the scope of the original request.  The statute, A.R.S. § 39-121.02, allows fees when a party prevails in a court action to compel a response to a public records request.  The initial denial of the request is a prerequisite to bringing the special action to compel.  Here the court-ordered, and the company pursued an expanded response beyond the scope of the original records request.  Fees are not available for compelling production that was not requested or denied before the special action.    

Second, the court failed to determine when the Assessor stopped acting in an adversarial role.  The record indicates that the Assessor began cooperating and complying at some point during the proceeding.  The party seeking to compel a response can only “prevail” under A.R.S. § 39-121.02 during the period that the public entity is opposing the response in an adversarial role.  In awarding fees, the court needed to determine when the Assessor stopped opposing the response.  Instead the court, in this case, awarded fees based on the point at which the company no longer prevailed in obtaining additional responsive materials. 

Judge Eckerstrom authored the opinion; Judges Eppich and Espinosa concurred.