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ACLU v. Ariz. Dep. of Child Safety - 8/25/2021

Arizona Supreme Court holds that a party may recover attorneys’ fees in a records request suit under A.R.S. § 39-121.02 when it has “substantially prevailed” by being more successful than not in obtaining records or other relief that was contested by the opposing party before litigation.


In 2013, the ACLU sued the Arizona Department of Child Safety (DCS) seeking records about child welfare services.  DCS produced a limited set of documents at that time.  After the ACLU submitted additional requests with no response, the ACLU eventually filed a special action and requested attorneys’ fees under A.R.S. §§ 39-121.02(A) and (B).  DCS produced additional documents in the lawsuit but objected to other requests, stating that they would require DCS to create new records using data in an electronic management system.  The trial court declined to determine whether the electronic management system was a public record and denied the ACLU’s attorneys’ fees request. 

On appeal in 2016, the Court of Appeals held that the electronic management system was a public record and remanded to the trial court to determine whether the ACLU was entitled to attorneys’ fees because it received documents and data from this system in response to the lawsuit.  On remand, the trial court held that because the “crux” of the case was whether the electronic management system was a public record and the ACLU prevailed on that issue, the ACLU was entitled to attorneys’ fees.  On a second appeal in 2018, the Court of Appeals held the trial court erred by basing its attorneys’ fee award primarily on whether the electronic management system was a public record and instead should have considered the scope of the relief sought and the scope of the documents produced.

The Supreme Court accepted review of the Court of Appeals’ latest opinion to clarify the “substantially prevailed” standard for attorneys’ fees awards under A.R.S. § 39-121.02.  The Court held that under this standard, a trial court should consider whether a party is “more successful than not in obtaining the requested records, defeating the government’s denial of access to public records, or securing other relief concerning issues that were contested before litigation was initiated.”  The Court vacated the relevant portion of the Court of Appeals’ latest opinion and remanded to the trial court to determine whether attorneys’ fees were appropriate under this standard.

Justice Beene authored the unanimous opinion.

Posted by: Travis Hunt 

Posted On: 10/15/2021