Conroy v. hutchinson/state

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

RAYMOND CONROY, Plaintiff/Appellant,

v.

JACKIE HUTCHINSON; STATE OF ARIZONA, Defendants/Appellees.

No. 1 CA-CV 20-0394
FILED 3-2-2021

Appeal from the Superior Court in Maricopa County
No. LC2020-000040-001
The Honorable Michael W. Kemp, Judge

AFFIRMED

COUNSEL

Raymond Conroy, San Luis
Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Marjorie S. Becklund
Counsel for Defendants/Appellees

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Cynthia J. Bailey and Judge Lawrence F. Winthrop joined.
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Decision of the Court

M c M U R D I E, Judge:

¶1 Raymond Conroy appeals the superior court’s decision
dismissing his special-action petition for public records. Finding no error,
we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 For years, Conroy, an inmate in the Arizona Department of
Corrections (“ADOC” or “the Department”), submitted public-record
requests to ADOC requesting various documents. The Department
provided some, but not all, documents. Conroy filed a special action
petition in the superior court per A.R.S. § 39-121.02, arguing that the
Department’s denials violated A.R.S. § 39-121.

¶3 In its response, the Department argued that it properly denied
the requests. Specifically, it asserted that it refused his request for a
department employee’s personnel file (Erwin) due to safety concerns and
confidentiality. It denied his request for all documents in the Tucson facility
associated with Conroy’s criminal investigation because A.R.S. § 31-221(C)
and (E) exclude disclosure of a prisoner’s file except for an automated
summary record. It denied his request for a list of all “serious/significant
incident reports” from January 1, 2019, to October 1, 2019, because the
request was vague, and the Department does not maintain a list of incident
reports. It denied his request for all records generated and used at a
disciplinary hearing dated October 7, 2019, because Department Order 803
deems confidential disciplinary hearing records.

¶4 The Department denied Conroy’s request for a file related to
another department employee (Richter) because employee personnel files
are confidential, and the request was for information rather than records.
The Department denied his request for Richter’s disciplinary records, citing
security concerns. Also citing security concerns, it denied three requests
from December 2019 through January 2020, seeking records related to an
investigation of Richter for conducting an unlawful traffic stop, an incident
on December 30, 2019, in which Conroy alleged an inmate was given the
wrong medication and a “racial riot” at the Yuma Prison complex.

¶5 The Department granted Conroy’s request for records
detailing the current amount of money in the Inmate Store Proceeds Fund.
It also granted a request for an ADOC paralegal’s contract made on July 15,
2018, and received on October 31, 2018. However, the request concerning
the paralegal’s contract was closed on April 12, 2019, because neither

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Conroy nor an agent came to retrieve or pay for the documents related to
that request.

¶6 In its response in the superior court, the Department alleged
that Conroy made the requests to harass it. To support this allegation, the
Department attached two letters, one dated October 2019 and the other
March 2020. In the October letter, Conroy warned that “more and more
requests [were] forthcoming” until Conroy was returned to a prison unit in
Tucson and that further requests would also follow if he were transferred
again. In the March letter, Conroy wrote that he planned to make “MANY
MORE public records requests” now that he no longer had access to a
television. In his reply, Conroy requested a hearing to resolve any factual
disputes.

¶7 In an unsigned order, the court found that the Department
provided Conroy with all legally required public records and dismissed
Conroy’s petition. The court ordered Conroy to stop filing frivolous
public-record requests and noted that the Department need not respond to
further inquiries from Conroy “unless the request is lawful or ordered by
the Court.”

¶8 Conroy moved for clarification of the court’s order seeking:
(1) a signed minute entry so he could appeal the decision; (2) a hearing to
rebut the Department’s allegations of security issues in court or an in camera
review of the requested files; (3) all government records that do not discuss
ongoing investigations; and (4) clarification of the court’s meaning of
“lawful” and identification of the court that may order the Department to
grant a request. The court denied the motion. Conroy appealed. This court
revested jurisdiction to the superior court so it could consider signing an
order with a finality certification according to Arizona Rule of Civil
Procedure 54(c). The court issued a final judgment under Rule 54(c). We
have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1), and
Arizona Rule of Procedure for Special Actions 8(a).

DISCUSSION

¶9 Conroy argues that the court’s ruling was erroneous because
it: (1) was vague and ambiguous as it did not specify which public-record
requests are “lawful” or which “court” may order the Department to
comply with further requests; (2) violated A.R.S. § 39-121 by prohibiting
Conroy from filing additional requests without authorization; (3) dismissed
Conroy’s petition without a hearing or an in camera review, and (4) violated
Conroy’s due-process rights under Article 2, Section 4 of the Arizona

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Constitution by failing to hold a hearing or otherwise allow Conroy to
defend the lawfulness of his requests. Conroy requests a remand with
instructions to the superior court to hold a hearing on the public records
requested.

¶10 All records required to be kept under A.R.S. § 39-121.01(B) are
presumed to be open to the public for inspection as public records. Carlson
v. Pima County, 141 Ariz. 487, 491 (1984). However, some public records are
confidential and should not be disclosed to the public. The custodian of
public records must deny inspection when the requested record is made
confidential by statute, Berry v. State, 145 Ariz. 12, 13–14 (App. 1985), or
when a legitimate government consideration of privacy and the best
interests of the State outweigh the public’s interest in disclosure, Scottsdale
Unified Sch. Dist. No. 48 v. KPNX Broad. Co., 191 Ariz. 297, 300, ¶ 9 (1998).
Whether a document is a public record or whether a denial of access to a
public record was wrongful are issues of law that we review de novo. Lunney
v. State, 244 Ariz. 170, 174, ¶ 6 (App. 2017); Phx. Newspapers, Inc. v. Ellis, 215
Ariz. 268, 271, ¶ 13 (App. 2007). Otherwise, we review a superior court’s
decision for abuse of discretion. W. Valley View, Inc. v. Maricopa County
Sheriff’s Office, 216 Ariz. 225, 227, ¶ 7 (App. 2007).

A. The Order Was Not Vague or Ambiguous.

¶11 Conroy argues that the superior court’s order was vague or
ambiguous because it permitted the Department to ignore his inquiries
unless they were lawful or ordered by a court. Specifically, he argues that
the order should have defined when an inquiry was “lawful” and stated
which court may order the Department to respond to Conroy’s inquiries.

¶12 The order is not vague or ambiguous. The Department is
required to follow the law and provide appropriate responses to
public-record requests. In other words, the Department must comply with
“lawful requests.” Likewise, if a public-record applicant believes a public
agency has failed to comply with a lawful request, he or she may file a
special action with the superior court to seek relief by court order, precisely
as Conroy did in this case. The court did not err, and although the order
directed Conroy not to file “frivolous” requests, it does not require Conroy
to seek permission before he submits a lawful public-record request.

B. The Superior Court Did Not Err by Dismissing Conroy’s Petition
Without A Hearing or In Camera Review.

¶13 Conroy argues that the superior court erred by failing to allow
him to defend his requests and asserts he is entitled to a hearing to address

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each public-record request or an in camera review of the records. We review
the superior court’s decision regarding whether to hold an evidentiary
hearing for an abuse of discretion. Duckstein v. Wolf, 230 Ariz. 227, 233–34,
¶ 19 (App. 2012). We defer to a superior court’s findings of fact unless they
are clearly erroneous. KPNX, 191 Ariz. at 302, ¶ 20.

¶14 Where the facts of a case “raise a substantial question as to the
threshold determination of whether the document is subject to the statute,
the court must first determine whether that document is a public record.”
Griffis v. Pinal County, 215 Ariz. 1, 5, ¶ 13 (2007) (internal quotation omitted).
If the statute applies, there is a presumption for disclosure, but a “court can
perform a balancing test to determine whether privacy, confidentiality, or
the best interests of the state outweigh the policy in favor of disclosure.” Id.;
Lunney, 244 Ariz. at 179, ¶ 29.

¶15 Any person may inspect “[p]ublic records and other matters
in the custody of any officer.” A.R.S. § 39-121. This principle applies to
records of prisoner care and custody. Still, the Department may not disclose
records or portions of documents that would reveal a confidential
informant’s identity, endanger a person’s life or physical safety, or
jeopardize an ongoing criminal investigation. See A.R.S. § 31-221(A), (C).
Inmates may access their own automated summary record files but may not
access any other prisoner’s records. See A.R.S. § 31-221(D), (E).

¶16 Here, the Department correctly rejected Conroy’s request for
documents in the Tucson facility associated with a criminal investigation.
Aros v. Robinson, No. CV-04-306-PHX-SRB (LOA), 2011 WL 13302091, at *2
(D. Ariz. Sept. 19, 2011) (unpublished order) (citing to A.R.S. § 31-221(E)
and denying a motion to compel the release of “Inmate Disciplinary Report
(‘IDR’), Result of Discipline Hearing form (‘RDH’), and Reclassification
Score Sheets”). For the same reason, Conroy was not entitled to his request
dated January 3, 2020, seeking information on an incident where an inmate
was allegedly given the wrong medication or his request dated January 15,
2020, seeking documents associated with a “racial riot.”

¶17 Furthermore, the Department was not required to create new
categories of information. See ACLU v. DCS, 240 Ariz. 142, 150, ¶ 23 (App.
2016) (“The superior court correctly recognized the ACLU’s outstanding
requests were asking DCS to tally and compile aggregate information
contained in CHILDS-information that DCS had not previously tallied and
compiled.”). Because the Department does not differentiate which of its
incident reports are “serious” or “significant,” it was entitled to reject
Conroy’s request for “serious/significant incident reports.”

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¶18 Similarly, the Department need not provide records based on
requests for information about information. Lunney, 244 Ariz. at 177, ¶ 23
(“A distinction exists between ‘searching an electronic database to produce
existing records and data’ and ‘searching an electronic database to compile
information about the information it contains.’”) (quoting ACLU v. DCS,
240 Ariz. at 149, ¶ 18). Thus, the Department was not required to provide
information concerning whether one of its employees is a law enforcement
officer.

¶19 Because the Department denied many of Conroy’s
public-record requests by raising security concerns rather than citing
categorical exclusions from A.R.S § 39-121’s disclosure requirement, a court
must balance the security concerns against Arizona’s policy favoring
disclosure. Griffis, 215 Ariz. at 5, ¶ 13. Such a balancing test typically
involves in camera review. See Mitchell v. Superior Court, 142 Ariz. 332, 334
(1984) (noting that reviewing courts “have asked trial courts to make in
camera inspections of the relevant documents and balance the rights of the
parties”); cf. Griffis, 215 Ariz. at 3 (holding that when a “government entity
withholds documents generated or maintained on a government-owned
computer system on the grounds that the documents are personal, the
requesting party may ask the trial court to perform an in camera inspection
to determine whether the documents fall within the public records law”).

¶20 Regarding Conroy’s request for a list of records generated
and used at a disciplinary hearing on October 7, 2019, the Department
asserted that this information is confidential because such hearings are
confidential under Arizona Department of Corrections, Department Order
803. This order does not control whether a confidentiality concern
outweighs public-record law. See Mathews v. Pyle, 75 Ariz. 76, 80–81 (1952)
(concluding that the state does not have the final authority to determine
whether a record is confidential). Nonetheless, the court reasonably
deferred to the Department’s regulation insofar as it addressed internal
security. See Kane v. Lewis, 931 F.2d 896 (9th Cir. 1991) (unpublished table
decision) (“Prison administrators have broad discretion to implement
policies and practices designed to ensure the safety of the inmates and staff
within a facility.”); see also Turner v. Safley, 482 U.S. 78, 89 (1987) (assigning
to prison regulations a lower degree of constitutional scrutiny “reasonably
related to legitimate penological interests”). Such departmental policies can
form an independent basis for withholding lawfully requested public
records when introducing those records into a prison threaten “legitimate
penological interests.” See, e.g., Livingston v. Cedeno, 186 P.3d 1055, 1057–58,
¶ 9 (Wash. 2008) (A department of corrections complied with a statutorily
mandated release of a public-record request when it mailed the records,

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gave the plaintiff notice that the mail would be rejected so he may have it
forwarded to a different address, and then intercepted them once they
reached the correctional facility pursuant to its policy of confiscating
materials that threaten to “undermine the security and order of the
facility.”).

¶21 Here, the issues concern an inmate’s access to documents
relating to other inmates and staff personnel, heightening security
concerns. See, e.g., Md. Restorative Justice Initiative v. Hogan, No. CV
16-01021-ELH, 2018 WL 5026369, at *2–4 (D. Md. Oct. 17, 2018) (mem.
opinion) (requiring as a condition of discovery that prisoners and former
prisoners may not access “case records” designated as confidential and
containing descriptions and photographs of inmates, inmate family history,
previous records of inmates, summaries of cases for which inmates serve
sentences, and records of physical, mental, and educational examinations);
Brew v. Johnson, No. 1:04-CV-05445-LJO-GSA-PC, 2008 WL 686433, at *7
(E.D. Cal. Mar. 11, 2008) (nonpublished order) (Defendants need not answer
an interrogatory from inmate seeking the number of personnel and
correctional officers who had been reprimanded or terminated for
smuggling tobacco “on the basis of public policy favoring employees’
privacy” where defendants raised security and confidentiality issues based
on legal protections specific to correctional staff.). As such, the Department
established a prima facia basis to deny the requests.

¶22 Conroy was required to demonstrate a need for the requested
information to overcome the Department’s objection to disclosure for
security and privacy concerns. See Lake v. City of Phoenix, 222 Ariz. 547, 551,
¶ 15 (2009) (In determining whether to release suspect information, the
court may consider concerns related to privacy, confidentiality, or the
state’s best interests.). Conroy argues that a hearing was necessary to
establish why he required the information and respond to the Department’s
security and privacy assertion. However, Conroy has put the proverbial
cart before the horse. He was required to state a reason for the requests to
establish a colorable claim before the court was required to hold a hearing.
The only evidence before the superior court regarding why Conroy needed
the information indicated the request was made to harass the Department.

C. The Superior Court Did Not Violate Conroy’s Right to Due
Process.

¶23 Article 2, Section 4 of the Arizona Constitution provides that
“[n]o person shall be deprived of life, liberty, or property without due
process of law.” Due process requires notice and an opportunity to be heard

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in a meaningful time and manner. State v. Stocks, 227 Ariz. 390, 394, ¶ 7
(App. 2011); Iphaar v. Indus. Comm’n, 171 Ariz. 423, 426 (App. 1992). “We
review constitutional claims de novo.” Emmett McLoughlin Realty, Inc. v.
Pima County, 212 Ariz. 351, 355, ¶ 16 (App. 2006), as corrected (Mar. 9, 2006).

¶24 Conroy argues that he was denied the opportunity to defend
each public-record request individually. He further contends that the court
denied him the chance to show why he asked for the public records. But he
addressed both matters in his special-action petition and reply. As
discussed above, substantial evidence—in the form of Conroy’s letters—
showed that Conroy’s purpose was to harass the Department, and he
asserted no legitimate basis for needing the requested information. The
court did not err by refusing to grant Conroy a hearing.

CONCLUSION

¶25 We affirm the superior court’s order.

AMY M. WOOD • Clerk of the Court
FILED: AA

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