Open & Shut: a statewide public records audit

Sometimes it takes a fight to get look at documents

Aaron J. Latham / Staff
Web Parton's research about a closed University of Arizona landfill near Oracle led to a voter initiative on development near the dump.

Video: Watch part of a panel presentation before the Arizona League of Cities and Towns in which Merle Turchik, an assistant city attorney for Tucson, advises public officials how to handle requests for records they believe should be withheld.

Public records tell homeowners about building projects in their neighborhoods. They contain key details about waste sites, air quality and document how government protects public safety and spends taxpayer money.

Despite clear directions provided to public officials in the 101-year-old Arizona Public Records Law, however, these documents often can't be obtained without a fight.

A statewide audit organized by Associated Press Managing Editors of Arizona found that police agencies failed nearly half the time to turn over records on crimes. At a quarter of the school districts visited, auditors had to cite the law to get documents.

Adding a new dimension to the public records struggle, some governments now are suing news organizations that seek records.

Those who wage access battles - citizens, watchdog groups and the media - say the struggle is worth it because public records reveal things about life in Arizona that might otherwise go unnoticed.

"Records tell you what happened," said Charles N. Davis, executive director of the Freedom of Information Center at the University of Missouri School of Journalism. "They demonstrate government's thinking and philosophy - in ways that hanging around government can't do."

Records allow citizens to see for themselves what government is doing rather than having to take someone's word for it, said Michael Gregory, director of Arizona Toxics Information, an environment group in Bisbee.

"The government often has its own agenda, which may differ from the public's agenda, the public's desire or the public's needs," Gregory said.

Digging into city planning documents and variance applications is helping Tucson resident Sloane Haywood challenge a business's plan to expand next to her home.

"For me as an individual, knowledge is power," said Haywood, who is arguing the case before the Board of Adjustment. "I don't want to throw facts around without being on solid ground."

Environmentalists credit public records with helping in the 1991 defeat of a hazardous- waste-disposal plant planned in Mobile, about 40 miles south of Phoenix.

The ENSCO plant was supposed to have been large enough to handle all the hazardous waste generated by Arizona industries, plus tons of material shipped from other states for disposal. The state orchestrated a buyout of the ENSCO contract after public opposition to the project swelled.

While the project was still under way, records requested by opponents revealed the projected volume of waste the plant would process - a question that hadn't been answered adequately before, said Stephen Brittle, president of Don't Waste Arizona, an environmental group.

The records also raised concerns that emissions from the plant would have greater adverse effects on health than had been reported, Brittle said.

More recently, conservationist Web Parton used an extensive search of state records to show how concerns about cost helped drive the University of Arizona to cap its closed hazardous-waste landfill near Oracle with dirt instead of a flexible membrane and clay.

State officials said levels of contamination that showed up briefly last year in a ground water monitoring well were too low to be a threat, but the disclosure helped fuel a voter initiative on development near the dump.

"It is terribly important that, in a free society, the public is allowed access to the internal documents and workings of the governmental organizations it funds," Parton said. "If that is not allowed to happen, then scoundrels and special interests end up running the show."

Three Arizona newspapers used records in investigations that showed some doctors were allowed to continue practicing medicine after they were accused of killing or harming patients.

The Arizona Daily Star, Phoenix New Times and The Arizona Republic determined that the doctors continued practicing because the state Board of Medical Examiners was too soft and too slow in investigating complaints against doctors.

After two newspapers published the board's database of complaints against doctors online, the Legislature ordered the board to do so, too. Now consumers can check the board's Web site to more easily review disciplinary histories when choosing a physician.

On occasion, disputes over getting records prompt news organizations to sue governments to try to get records. But these days some agencies are beating the press to the punch by filing lawsuits first.

Since 1999, the Mohave Valley Daily News in Bullhead City, the White Mountain Independent in Apache County, the Tiempo-Times in Yuma and the Tucson Poet were sued by government agencies after asking for records.

Some government attorneys said they file lawsuits first so a judge can decide whether the records have to be released and to try to avoid paying attorney fees for the newspapers.

In three of the cases, the publications asked for records of investigations of government or its employees.

The Tucson Poet succeeded in its request for autopsy photographs of illegal immigrants who died while crossing the U.S.-Mexican border.

The cases against the White Mountain Independent and the Tiempo-Times ended with the news organizations dropping their requests, attorneys said.

In the Bullhead City case, a judge ruled that the city acted in bad faith when it sued the Daily News.

The city didn't want to disclose a report that detailed an investigation of whether police improperly looked into a city councilwoman's background. It wound up having to release the report and pay $11,000 of the newspaper's attorney fees.

In the past, governments that didn't want to give up records would stonewall and dare you to sue, said First Amendment attorney Dan Barr, who represented the Bullhead City newspaper.

That still occurs, but now some officials seem to think that by asking a court to decide, they can lessen the risk of paying the other side's attorneys fees if the court rules they wrongly withheld the records.

Going to court is OK if a city needs guidance because of confusion over whether a record is public or private, but it's wrong if it's a ploy to make requesters "think carefully" about asking for records, Barr said.

Assistant City Attorney Merle Turchik of Tucson, speaking last fall at an Arizona League of Cities and Towns seminar, advised officials throughout the state to sue the press instead of waiting to be sued in disputes over records.

She said later that the strategy lets a government avoid going into court as a defendant looking like it did something wrong - but it's not meant to discourage requests.

"I think it's really trying to show that government has tried to act in the most responsible manner it knows," Turchik said.

In another case, Tucson sued newspaper and TV organizations that requested a photo of five police officers who posed nearly naked for a picture while on duty. Also named as a defendant was the local police officers association, which was fighting to keep the photo private.

Media groups argued that the public has a right to review the results of investigations by public officials of other public officials. The city said privacy interests of public employees outweighed the public-disclosure interest. But the Arizona Court of Appeals ordered the photo made public.

The tactic of governments suing first will have a chilling effect on public records requests, said Doug Metcalf, an attorney who helped the White Mountain Independent in its request for records from the city of St. Johns.

"The effect is that anytime you make a public records request, you are possibly inviting a lawsuit," Metcalf said.

But Glenn Gimbut, an attorney for San Luis and Somerton in their case against the Tiempo-Times, rejected such a scenario, saying thousands of records requests are filled in Arizona without any disputes.

Lawsuits over public records are rare - and cases initiated by governments even rarer, Gimbut said.

"A chilling effect occurs only when it's common enough that you are aware of it in your ordinary course of business," Gimbut said.

* Contact Enric Volante at 573-4129 or volante@azstarnet.com.