Government can’t make people wait for weeks for request, court says

By Howard Fischer
Capitol Media Services
Published/Last Modified on Thursday, February 7, 2008 3:06 PM MST


PHOENIX — Government can’t make people wait for weeks or months for public records, the Arizona Court of Appeals ruled Tuesday.


 In a unanimous decision, the judges said Arizona’s Public Records law, unlike some other states, requires that the custodian of the items sought “shall promptly furnish such copies, photographs or printouts.’’ And it says any request which is not promptly honored is deemed to have been denied.

 Judge Murray Snow, writing for the court, acknowledged the law does not define “promptly.’’

 But he said there are some limits. And that using this case as a guidepost, there is no way that delays sometimes extended into more than 100 days can be considered reasonable.

 In issuing their decision, the judges acknowledged that delays have to be judged on a case-by-case basis. But they also concluded that public agencies can’t avoid their legal responsibilities for prompt responses simply because an employee neglected to pursue the request.

 “If mere inattention by an employee of a public body could meet that body’s burden of establishing that it promptly provided documents ... it would turn on its head the core purpose of th public records law,’’ Snow wrote. That purpose, he said, is to ensure that individuals have access to official government records to be able to “monitor the performance of government officials and their employees.’’

 The case involves a series of requests made by New Times, a Phoenix weekly paper, for records of the Maricopa County Sheriff’s Department. These ranged from personnel records to reports about the investigation of Dan Saban — running at the time against incumbent Sheriff Joe Arpaio — on allegations of sexual misconduct.

 In the Saban case, the sheriff’s office said the investigation was transferred to another agency. But 143 days later , after the lawsuit was filed and the election over did the department conclude it did, in fact, have some records.

 That, said Snow, was not prompt as required by law.

 In another incident, a sheriff’s employee said she didn’t respond for 141 days because she didn’t want to communicate with the reporter.

 Snow also said it was no excuse to delay providing records to someone simply because those same documents might be obtained from another source.

 Tuesday’s ruling that the response to the records requests were not prompt does not end the court battle. The appellate judges sent the case back to a trial judge to determine if the delays were in bad faith or were arbitrary and capricious, the standards to determine if the county has to pay the legal fees for the newspaper.

 Calls to the attorney for the sheriff’s department were not immediately returned.

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