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Am. Civil Liberties Union of Ariz. v. Ariz. Dep’t of Child Safety - 1/14/2020

Arizona Court of Appeals Division One holds that a government’s internal confusion is not a sufficient reason to explain a delay in the production of documents in response to a public records request and that a requesting party does not substantially prevail unless the records provided substantially provide the information sought by the underlying requests.


A non-profit requested copies of public records from a state agency.  After initially providing partial responses, the agency ceased both communicating with the non-profit or producing records.  During that time, it was addressing thousands of improperly resolved matters and undergoing significant restructuring, leaving the agency not certain who was responsible for responding to the requests.  The non-profit then filed a special action in superior court.  The agency produced five hundred pages of new documents in response to several requests.  It refused to respond to the remainder because it would require the creation of new documents.  The superior court agreed with the agency, and the non-profit appealed.  The Court of Appeals affirmed on that issue but remanded for a determination of whether the agency had responded promptly and reversed as to the denial of attorneys’ fees for the non-profit.  On remand, the superior court determined the agency had not acted promptly, and that the non-profit had substantially prevailed.  It awarded attorneys’ fees to the non-profit.  The agency appealed.

The Court of Appeals affirmed as to promptness and reversed and remanded as to fees.  While there is no particular timeframe to respond to a public records request, a government entity must be quick to act.  A failure to be prompt is construed as a denial.  If a records request constitutes an unreasonable administrative burden, it justifies a failure to respond promptly.  The agency failed to present any evidence showing the production of the documents was prompt in context.  The agency’s internal disorganization and crises were insufficient to show the records request was an undue administrative burden.

The superior court erred in awarding the non-profit fees.  Fees may be awarded to a party that’s request for public records is denied, but then substantially prevails in litigation to obtain the records.  In determining whether a party substantially prevailed, a superior court must determine whether the requestor substantially obtained the information sought by the underlying requests by measuring the scope of the requests against the scope of the documents produced.  The superior court did not address this issue at all, and instead rested its determination on an ancillary issue that was not in dispute.

Judge Morse delivered the unanimous opinion of the court.  Judge Howe and Judge Rogers joined.

Posted by: Emma J. Cone-Roddy

Posted On: 2/10/2020