Client Alert: Arizona’s Public Records Law – Recognizing the Pain of Production

For several years, public schools and agencies have hoped for the passage of legislation that would allow them to take into account the burden of responding to public records requests in their responses, but those legislative efforts have failed. Last week, the Arizona Court of Appeals weighed in on the topic, issuing an opinion that recognizes that “the burden of producing public records may outweigh the public’s interest in inspecting public records.” Arizona Civil Liberties Union of Arizona v. Arizona Department of Child Safety, No. 1 CA-CV 14-0781 (June 9, 2016). Hooray!

The Public Records Requests at Issue. In 2013 and 2014, the ACLU submitted three public records requests to the Arizona Department of Economic Security (the predecessor agency to the Department of Child Safety). The May 2013 request consisted of 30 separate requests with multiple subparts, the January 28, 2014 request contained 37 separate requests with multiple subparts, and the January 31, 2014 request contained 24 separate requests with multiple subparts.

Each of the requests asked DES to answer questions or to compile statistical information or percentages that would answer questions. For example, one request asked DES to provide the number of children in certain specified age groups who were placed in shelters by DES during specified periods.

In responding to certain of the requests, DES relied on information from reports that it had previously generated, and it retrieved that information in part from searching its electronic case management system. But DES did not respond to all of the requests.

The Arizona Court of Appeals’ Decision. In its opinion, the Arizona Court of Appeals addressed three issues that are of importance to schools in defining their obligations to produce public records.

1. Schools have an obligation to search electronic records in response to a records request. The Court confirmed that “records and data maintained electronically” are as much public records as are paper records and data. If you receive a public records request, you have an obligation to search your electronic data for responsive documents. 
2. Schools do not have to create new documents to respond to a records request. Arizona’s public records law requires schools to search for and produce responsive documents, but it does not require them to create new documents. In this case, DES did not have to “tally or compile previously untallied and un-compiled information or data to respond to a public records request.” In other words, the public records law does not require you to answer questions that are disguised as requests for documents. If you have a document that meets the request criteria, you have to produce it (subject to FERPA requirements and some other exceptions), but you do not have to compile data or create a new document simply because a member of the public would like you to do so. 
3. Unreasonable burden may be a sufficient reason to not respond to a records request. The public records law requires schools to respond to requests “promptly.” Although the ACLU argued that the burden of responding to public records requests can never outweigh the public interest in the production of documents, the Court of Appeals disagreed. The Court noted that “an unreasonable administrative burden may constitute a sufficient reason to deny a public records request under Arizona law.” In determining whether a burden is unreasonable, courts will examine the resources it will take to locate and redact the requested documents, the volume of documents requested, and the extent to which complying with the requests would disrupt a school’s ability to perform its core educational functions. The burden is on the school to demonstrate that the request is unreasonably burdensome, and the Court of Appeals noted that the amount of evidence necessary to demonstrate an unreasonable burden must be “sufficiently weighty.” 

The Bottom Line for Schools in Responding to Public Records Requests. The Court of Appeals’ decision is good news for schools because it confirms that schools do not have to create new records or answer questions that are disguised as record requests. In connection with its discussion of search obligations, the Court confirmed its earlier holding that documents that are purely personal in nature are not public records, even if they are stored on a school’s server or database. Finally, if a request is unreasonably burdensome, you may not need to respond to the request at all or your response may be limited. However, the standard recognized by the Court is a high one, so you should consult with your legal counsel before deciding that you can ignore a request.

Osborn Maledon’s Education Law Practice team can help you with any public records issues or provide you with advice about any other legal issues you face.