Ball v. Adhs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

J.D. BALL, Plaintiff/Appellant,

v.

ARIZONA DEPARTMENT OF HEALTH SERVICES, et al.,
Defendants/Appellees.

No. 1 CA-CV 21-0134
FILED 12-28-2021

Appeal from the Superior Court in Maricopa County
No. CV2020-012030
The Honorable Sara J. Agne, Judge

AFFIRMED

COUNSEL

J.D. Ball, Scottsdale
Plaintiff/Appellant

Sherman & Howard LLC, Phoenix
By Gregory W. Falls, Craig A. Morgan
Counsel for Defendants/Appellees
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Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.

B R O W N, Judge:

¶1 J.D. Ball appeals the superior court’s order denying his special
action complaint filed under Arizona’s public records statute, A.R.S. § 39-
121. Ball challenges several of the court’s scheduling, discovery, and
evidentiary rulings, as well as the court’s decision denying him access to
COVID-19 records in the custody of the Arizona Department of Health
Services (“ADHS”). Because the court acted within its discretion in
deciding issues unrelated to the merits, and reasonable evidence supports
the court’s ruling that the records Ball sought are not subject to disclosure,
we affirm.

BACKGROUND

¶2 Ball is writing a book about COVID-19. In June 2020, he sent
ADHS a public records request seeking access to the records ADHS relied
on when preparing its COVID-19 publications, including its COVID-19
dashboard. ADHS denied the request, explaining it could not divulge
private medical information, communicable disease information, or death
certificates. Ball then sent ADHS an addendum, stating in part he was not
seeking any personal health-related data, but only public records proving
that COVID-19 “exists as a pandemic virus” and is a communicable disease
in Arizona. ADHS, through legal counsel, again denied the request.

¶3 In response, Ball sent ADHS a letter demanding it “[c]ease
and desist the illegal activity of publishing false information,” and alleged
ADHS was committing treason by selectively reporting on COVID-19 to
“influence a COVID-19 pandemic catastrophe.” When ADHS did not
respond, Ball sought special action relief in the superior court. Ball asked
the court to compel ADHS to disclose “the source of the data used to create
the COVID-19 dashboard” so he could “confirm the accuracy of the
information released to the public.” Specifically, he requested records
relating to confirmed cases, testing, death certificates, hospitalization and
ventilator use. Ball also demanded answers to a number of administrative,
political, and scientific questions. For example, in his complaint Ball

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demanded ADHS explain why it uses some kinds of COVID-19 tests over
others, why Arizona’s infection rates were above the national average, what
type of oversight ADHS has implemented, and why the media is allowed
to publish false information.

¶4 The court ordered ADHS to show cause for denying the
request, and a hearing was scheduled for November 17, 2020. The court
then granted ADHS a continuance because of a scheduling conflict,
delaying the matter until November 20. At the hearing, the parties seemed
to agree that direct examination would be submitted through witness
declarations instead of live testimony. The parties expressly agreed to
submit all exhibits to the court by November 25. The court then scheduled
an evidentiary hearing for December 4.

¶5 On November 25, Ball filed an emergency motion to extend
the deadline for filing exhibits, claiming his computer crashed when he
attempted to upload his exhibits, and thus some of them would need to be
filed with the court after 5:00 p.m. Additionally, Ball never disclosed or
submitted witness declarations; instead, he submitted a list of witnesses he
wished to call at the hearing. Ball then sought another extension, asking
the court to accept additional exhibits submitted after November 25 because
he had to be taken to the hospital by ambulance on November 27 for
treatment of an injury to his hand.

¶6 The court issued an order taking under advisement all
exhibits delivered to the court by November 25, regardless of when they
were submitted. The court rejected exhibits delivered after that date and
excluded Ball’s witnesses because he did not follow the stipulation to
submit declarations. The court also converted the December evidentiary
hearing to an oral argument.

¶7 During oral argument, Ball noted he was on medication due
to his injury, but he did not ask for a continuance or suggest he was unable
to participate in the proceedings. Nor did he object to the court’s order
changing the evidentiary hearing to an oral argument or ask the court to
schedule another evidentiary hearing. At the conclusion of oral argument,
Ball indicated that he had no additional issues to discuss, and the court took
the matter under advisement. Ball did not raise any issues pertaining to the
oral argument in any subsequent filings.

¶8 After additional pleadings were filed, the court accepted
special action jurisdiction and issued its ruling. First, the court admitted
into evidence and presumably considered the 90 exhibits Ball delivered to

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the court by the deadline date. Second, the court noted that much of what
Ball requested were answers to investigative and philosophical questions,
and therefore fell outside the realm of a public records request. Third, to
the extent Ball’s complaint included legitimate requests for public records
from ADHS, the court declined to order disclosure and dismissed the
lawsuit with prejudice. After Ball unsuccessfully moved for
reconsideration, he timely appealed. We have jurisdiction pursuant A.R.S.
§ 12-120.21(A)(1).

DISCUSSION

¶9 As an initial matter, ADHS asserts that Ball’s opening brief
does not comply with the requirements of ARCAP 13(a), and requests that
we sanction him by dismissing the appeal. See ARCAP 25; Adams v. Valley
Nat. Bank of Ariz., 139 Ariz. 340, 342 (App. 1984). Although the opening
brief is deficient in many ways, we decline to dismiss the appeal. Instead,
we address the merits to the extent Ball identifies arguable issues. See id.

A. Scheduling and Evidentiary Challenges

¶10 Ball challenges several of the superior court’s scheduling,
discovery, and evidentiary rulings. We review scheduling orders and the
denial of a continuance for an abuse of discretion. See In re MH 2007-001264,
218 Ariz. 538, 539, ¶ 5 (App. 2008); Reid v. Reid, 222 Ariz. 204, 206, ¶ 8 (App.
2009). Additionally, we “will affirm a trial court’s admission or exclusion
of evidence absent a clear abuse of discretion or legal error and resulting
prejudice.” Belliard v. Becker, 216 Ariz. 356, 358, ¶ 13 (App. 2007).

¶11 Ball argues the court abused its discretion in setting the initial
disclosure deadline, asserting “the court clearly favored [ADHS] and
placed Plaintiff on an impossible timeline.” He explains that the deadline
was unworkable because it overlapped with Thanksgiving and only gave
him three business days to prepare his exhibits. For the same reasons, Ball
argues the court erred (1) by not extending the exhibit disclosure deadline
to the December date listed in his second motion to extend, and (2) in
excluding his exhibits filed after November 25.

¶12 The superior court has broad discretion in ruling on discovery
and disclosure deadlines, and has authority to impose penalties for failing
to comply. See Ariz. R. Civ. P. 16(h)(1)(A), (j); Ariz. R. Civ. P. 37(b)(2)(A)(ii),
(c)(1), and (c)(4); Granger v. Wisner, 134 Ariz. 377, 381 (1982). Here, the court
gave Ball the option of setting the deadline for November 30, but he stated
that November 25 would be fine. Parties are generally bound by their own
stipulations unless relieved by the court. Harsh Bldg. Co. v. Bialac, 22

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Ariz.App. 591, 593 (1975). On these facts, we cannot say the court abused
its discretion in either setting this deadline or refusing to extend it,
especially considering both parties had the same amount of time and
agreed to this timeframe.

¶13 Ball next argues that an extension to file his exhibits was
warranted because of his crashed computer and hand injury. However, the
court granted his initial motion to extend due to the computer crash, taking
under advisement all exhibits submitted on November 25 and eventually
admitting 90 of them. Moreover, Ball’s injury occurred on November 27,
after the deadline already lapsed, so it had no bearing on his ability to
comply with the court’s order. No abuse of discretion occurred.

¶14 Ball suggests the court abused its discretion by converting the
December evidentiary hearing to an oral argument, by not continuing the
oral argument due to his injury, and by not allowing him to call witnesses.
He contends the court denied him due process by not allowing him more
time to submit exhibits and prepare for oral argument, especially
considering his injury and the fact that the court granted ADHS a
continuance on an earlier hearing. But Ball did not raise these issues in the
superior court, and never asked that court to postpone the December oral
argument or schedule an evidentiary hearing. See Englert v. Carondelet
Health Network, 199 Ariz. 21, 26, ¶ 13 (App. 2000) (stating that we generally
do not consider issues raised for the first time on appeal). On appeal, Ball
does not cite authority to develop his due process claim, nor does he
support it with argument other than vague assertions that “[d]ue process
requires all parties are treated fairly.” Thus, Ball has waived these
arguments. See MacMillan v. Schwartz, 226 Ariz. 584, 591, ¶ 33 (App. 2011)
(holding that a party waives issues he or she fails to develop or support in
the opening brief).

B. Substantive Issues

¶15 “Public records and other matters in the custody of any officer
shall be open to inspection by any person at all times during office hours.”
A.R.S. § 39-121. “Any person may request to examine or be furnished
copies, printouts or photographs of any public record during regular office
hours or may request that the custodian mail a copy of any public record
not otherwise available on the public body’s website to the requesting
person.” A.R.S. § 39-121.01(D)(1). Public records are broadly defined, and
a strong presumption exists in favor of disclosure. Griffis v. Pinal Cnty., 215
Ariz. 1, 3, ¶ 8 (2007). However, the public’s right to access public records is
not absolute. Carlson v. Pima Cnty., 141 Ariz. 487, 490 (1984). Our legislature

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has adopted a number of statutory exceptions to public records disclosure,
id., including those we discuss below. We review de novo the denial of a
public records request, but otherwise review the court’s order for an abuse
of discretion. W. Valley View, Inc. v. Maricopa Cnty. Sheriff’s Office, 216 Ariz.
225, 227, ¶ 7 (App. 2007).

¶16 The court found that the records were either confidential
medical information or death certificates, and therefore shielded from Ball’s
public records request. Ball argues this was error, asserting he was not
requesting medical information and that death certificates are already
publicly available.

1. Medical Information/Records

¶17 ADHS did not specifically take the position that medical
information was categorically protected. Rather, ADHS asserted only that
some of the records contained medical information obtained by an
enhanced surveillance advisory, and therefore those specific records were
protected under A.R.S. § 36-784. That said, we agree with the superior
court, and Ball does not argue otherwise, that medical information is
categorically protected from public disclosure, unless an exception applies.
As mandated by the legislature, “[u]nless otherwise provided by law, all
medical records and payment records, and the information contained in
medical records and payment records, are privileged and confidential.”
A.R.S. § 12-2292(A). Because medical records have been deemed
confidential by statute, they are not available for public inspection. See
Schoeneweis v. Hamner, 223 Ariz. 169, 173, ¶ 14 (App. 2009). Medical records
include what the superior court referred to as “medical information,” as
medical records are statutorily defined as “all communications related to a
patient’s physical or mental health or condition that are recorded in any
form or medium and that are maintained for purposes of patient diagnosis
or treatment, including medical records that are prepared by a health care
provider or by other providers.” A.R.S. § 12-2291(6). And although the
court did not draw the connection between medical information and the
medical records statute, we will affirm the court’s ruling if it is correct for
any reason. State v. Carlson, 237 Ariz. 381, 387, ¶ 7 (2015).

¶18 Ball contends he did not seek confidential medical
information or records. Besides death certificate data, Ball specifically
requested data concerning confirmed cases, hospitalizations, laboratory
testing, hospital bed usage and availability, ventilator usage and

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availability, and “COVID-19 specific metrics.”1 Logically, these broad
categories include medical information that falls under the definition of
medical records. Ball points to no other kinds of source data that would fit
into his requested categories of documents. In his reply brief, Ball asserts
that any identifiable information, such as names or social security numbers,
could be redacted. However, confidentiality protection is not limited to the
patient’s identity. See § 12-2292(A). And even if signifiers were redacted, a
danger remains that patient identity could be inferred. On this record, the
court did not err in finding Ball sought confidential medical records
protected from disclosure.

2. Communicable Disease Information

¶19 ADHS also asserted the records are protected from disclosure
because they contain communicable disease information. Under A.R.S.
§ 36-664(A), “[a] person who obtains communicable disease related
information . . . shall not disclose or be compelled to disclose that
information except as authorized by state or federal law,” unless certain
enumerated exceptions apply. The court did not explicitly hold that the
records Ball requested were confidential communicable disease records
under § 36-664, holding only that Ball waived any argument that the
confidentiality exceptions applied. Again, we will affirm if the ruling is
correct for any reason. Carlson, 237 Ariz. at 387, ¶ 7.

¶20 Ball argues that “[t]o be protected under ARS [§] 36-664([A])
ADHS has to prove the existence of a pandemic. [It] can’t hide behind a
pandemic law to avoid proving there is a pandemic with number[s] that are
mathematically impossible.” Ball further contends that ADHS must prove
COVID-19 “is more infection than other annual flu season, its highly
contagious and deadly.” But Ball misinterprets the statute. Section 36-
664(A) contains no requirement that the State prove a pandemic exists, or
that the condition is more prevalent than any other virus; the only
requirement is that the records concern a communicable disease. No one
disputes that COVID-19 is a communicable disease, as Ball concedes in his
motion for reconsideration. Presumably, the types of source data Ball
requested would include communicable disease information as defined by
statute, and Ball does not identify any source data that would not include
this information. Thus, in addition to being protected as medical records,

1 This term’s meaning is not obvious, and Ball offers no clear
explanation.

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the requested records are also protected under § 36-664(A) because they
concern communicable disease information.

¶21 Ball next asserts the court “erred by ruling on false evidence
contradicting the pleading and the evidence . . . used for the ruling.” Ball
appears to take issue with the court’s holding that he waived any
exceptions to the communicable disease provision. He argues he never
denied a communicable disease exists, but instead was seeking whatever
proof ADHS had regarding their claims that COVID-19 exists, is a
communicable disease, and a pandemic. Regardless, Ball provided no
argument, either in the superior court or on appeal, that any of the
exceptions applied to his request, so we affirm the court’s finding of waiver.
Waiver aside, our review of the statute and the record does not reveal any
exceptions that could possibly apply. See § 36-664(A)(1)–(19).

3. Death Certificates

¶22 Ball also argues the court erred in finding he was not entitled
to death certificate information. He contends that death certificates are
already in the public domain and that he was merely requesting ADHS to
organize the certificates “by the cause of death being COVID-19.”
Regardless of whether death certificates are available from public sources,
the issue here is whether Arizona law permits ADHS to disclose them.
Arizona law plainly states that the state registrar is prohibited from (1)
allowing “the inspection of a vital record or evidentiary document
supporting the vital record,” (2) disclosing “information contained in a vital
record,” or (3) transcribing or issuing “a copy of all or part of a vital record.”
A.R.S. § 36-342(B).2 And although our vital statistics law makes exceptions
for certain people, see A.R.S. § 36-324(A), journalists do not fall under those
categories. See Ariz. Admin. Code § R9-19-314(B); see also Schoeneweis, 223
Ariz. at 175, ¶ 20 (holding that § 36-324 exempts death certificates from the
public records law). We affirm the court’s decision denying access to death
certificates.

2 “The director of the department is the state registrar of vital records,”
A.R.S. § 36-302(A), and “’[d]epartment’ means the department of health
services,” A.R.S. § 36-101(2).

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CONCLUSION

¶23 For the foregoing reasons, we affirm the superior court’s
order dismissing Ball’s amended complaint. ADHS requests attorneys’ fees
as a sanction under ARCAP 25. In our discretion, we deny the request.

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

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