Arizona high court rules against U of A in public records case

The Arizona Supreme Court’s ruling against the University of Arizona could make it harder for public agencies to delay, deny or destroy records requested by Tucson residents. The unanimous decision says government bodies cannot dispose of documents after learning they have been requested, and it requires judges to independently review disputed records rather than simply accept an agency’s explanation that they are confidential or exempt from disclosure.

The case grew out of Andrew Abraham’s requests for records connected to University of Arizona hiring, appointments and selection processes. Abraham had challenged whether the university was complying with Proposition 107, the constitutional amendment approved by voters in 2010 that bars the state, including its public universities, from granting preferential treatment or discriminating based on race, sex, color, ethnicity or national origin in public employment, education and contracting. His requests sought documents related to those practices and to specific searches and decisions.

The university provided some records, redacted portions of others and withheld additional documents. It cited confidentiality, privacy and the state’s best interests, a broad exception that requires an agency to show that releasing records would cause specific, material harm greater than the public’s interest in access. The dispute also involved an audio recording of an Oct. 19, 2019, meeting of the Committee of Eleven, an independent elected group of faculty members that researches and advises on university matters.

The university told Abraham that it planned to use the recording only to prepare meeting minutes and would delete it soon afterward. It offered to let him listen to the audio but not receive a copy, an arrangement he rejected. After his attorney sent a demand letter in October 2020, the university said the recording was no longer available and continued to withhold or redact other materials. Abraham sued in September 2021 to compel the university to release the records. In November, the UA turned over more than 1,700 additional pages, although some were duplicates.

Pima County Superior Court Judge Wayne Yehling concluded that the university had initially abused its discretion before Abraham hired a lawyer, but ruled that the later document production corrected the improper conduct. He found that other redactions and withholdings were allowed and rejected Abraham’s request for attorney fees because, in his view, the university had provided everything to which Abraham was entitled before the lawsuit began.

The Supreme Court rejected key parts of that reasoning. Justice Clint Bolick, writing for the court, said Arizona’s public records law establishes a strong presumption that government records should be disclosed. Judges therefore cannot defer to an agency’s conclusion that a document is exempt or that withholding it serves the state’s best interests. Instead, judges must make their own decision, including by privately examining the disputed documents in chambers, a process known as an in camera review.

That standard could affect how public agencies across Arizona handle requests from residents, journalists, advocates and organizations. The court said agencies have a duty to provide eligible public records promptly, and that a judge must weigh the public interest against claimed harms based on the actual materials involved. Allowing agencies to make the final call about whether records qualify for disclosure, the ruling said, would undermine the state’s commitment to transparency.

The justices were particularly direct about the recording. Once the university knew Abraham had requested it, the recording had to be preserved. The fact that it was destroyed under the UA’s routine retention policy did not excuse the action. The court characterized the destruction of a requested record as an unlawful denial, even if the record no longer exists by the time a requester seeks judicial enforcement. In practical terms, an agency’s internal schedule for deleting materials cannot override its obligation to preserve a record that has already been requested.

The decision also addressed attorney fees, though it did not give every public records requester the right to recover the cost of hiring a lawyer. Under Arizona law, a requester generally must file a lawsuit to qualify for reimbursement. The court acknowledged that this may disadvantage people who cannot afford to sue and may not encourage agencies to respond fully and quickly. Still, Bolick said changing that rule is a responsibility for the Legislature. The court did clarify that when a requester eventually files suit and substantially prevails, the requester may be eligible for fees covering work done before the lawsuit as well as work performed in court. Otherwise, an agency could delay releasing records until just before litigation and avoid financial consequences.

Abraham’s case now returns to the trial court, which must independently determine whether the remaining records are public and whether the university properly withheld or redacted them. That decision will also determine whether Abraham substantially prevailed and whether the UA must pay his litigation costs. His separate claims against the university, involving alleged denial of promotions and the legality of his firing in April, remain unresolved. A hearing on those matters is scheduled for Nov. 20 in Pima County Superior Court. While those employment claims are separate from the public records dispute, the high court’s ruling gives Abraham another opportunity to challenge the university’s handling of records tied to his concerns.