Arizona Court of Appeals Division Two Holds That A.R.S. § 39-121.02(B) Permits a Trial Court to Award Attorneys’ Fees to a Party Requesting Public Records Against An Objecting Party Other Than the Custodian of Records.

Citizen Publishing Co. (“Citizen”) submitted a public records request to Pima County Attorney Barbara LaWall for documents related to the Arizona Attorney General’s transfer of a civil forfeiture case to the Pima County Attorney’s Office (“PCAO”).  Maricopa County Sheriff Joe Arpaio (“Arpaio”), whose office had originally investigated the case, objected to the production of correspondence between his office and the PCAO on attorney-client privilege grounds.  LaWall then filed a declaratory judgment action naming Citizen and Arpaio as defendants and asking the trial court to determine whether the records were protected by the attorney-client privilege or whether they should be released to Citizen.  The trial court found that the correspondence in question was a public record and must be provided to Citizen.  In addition, the trial court ordered Arpaio to pay Citizen’s attorneys’ fees pursuant to A.R.S. § 39-121.02(B).  Arpaio timely appealed.

A.R.S. § 39-121.02(B) provides that “[t]he court may award attorney fees and other legal costs that are reasonably incurred in any action under this article if the person seeking public records has substantially prevailed.”  Arpaio argued that because section 39-121.02(B) is contained in Article 2, Chapter 1, of Title 39, and all the other provisions in Article 2 deal solely with the duty of the officer or custodian responsible for maintaining and providing access to the requested records, it follows that section 39-121.02(B) permits an award of attorney fees only against that officer.  

The Court of Appeals rejected Arpaio’s argument and affirmed the trial court’s award of attorney fees, finding that the language of the statute, the context, and the legislative history all support the conclusion that the legislature intended to allow a prevailing party on a public records request action to recover attorney fees against any adverse party in that action.  With respect to the statute’s language, the Court found the legislature’s use of the term “prevailing” party contemplates that attorney fees should be awarded against the “non-prevailing” or adverse party.  Here, Arpaio, not the PCAO, was clearly the party adverse to Citizen’s efforts to gain access to the public records it had requested.  Moreover, the Court noted that the legislature’s specific reference in surrounding provisions to the officer or public body responsible for the requested records, and the lack of such a reference in section 39-121.02(B) suggests that the legislature did not intend for the responsibility for attorney fees to fall solely on the custodian of records.  Finally, the Court noted that prior versions of section 39-121.02 specifically limited the responsibility for an attorney fees award to the custodian of records, but that the limiting language had been removed by the legislature in 2006, further suggesting that the legislature intended that a party other than the custodian of records could be liable for attorney fees under the amended statute.

Judge Brammer authored the opinion; Chief Judge Pelander concurred.

Presiding Judge Howard specially concurred arguing that the focus of the Court’s analysis should have been on A.R.S. § 39-121.02(A), which provides that an action under the public records statutes may be brought “pursuant to the rules of procedure for special actions.”  Rule 2(a)(1), Ariz. R. P. Spec. Actions provides that in a special action against a public body or officer, a real party or parties in interest shall be joined as defendants.  Thus, the legislature expressed a clear desire in subsection (A) that parties other than the custodian of records be brought into public records actions, and it expressed no limitation in subsection (B) on the court’s ability to award attorney fees against any party to such an action.