dissenting:
I respectfully dissent.
I
The nature of government is to want to work in secret. The Arizona Legislature, however, has adopted the Public Records Law and the Open Meetings Law, which require that government records be available to the public and meetings be open to the public. The lesson taught is: public business should be done in public. In this case, we deal with the arcane, obscure, and byzantine conventions of courtship by which the president was selected for the 5th largest public university in the United States. The secret process of selection used by the Board of Regents in this case is at odds with the Public Records Law.
II
The trial court made detailed findings of fact and conclusions of law pursuant to rule 52(a), Arizona Rules of Civil Procedure, in support of the judgment entered in favor of the Newspapers. See Appendix A. These findings “shall not be set aside unless clearly erroneous.” Rule 52(a). The findings of fact by the trial court are not only not clearly erroneous, but are supported by substantial credible evidence, and should therefore be affirmed. See Mitchell v. Superior Court, 142 Ariz. 332, 335, 690 P.2d 51, 54 (1984); Moorehead v. Arnold, 130 Ariz. 503, 505, 637 P.2d 305, 307 (App.1981). This would be true even when substantial conflicting evidence exists. See Moore v. Title Ins. Co., 148 Ariz. 408, 413, 714 P.2d 1303, 1308 (App.1985). Here, the majority has not found the trial court’s findings of fact to be clearly erroneous; we, therefore, are bound by them. The majority does not agree with the trial court’s conclusions of law.
The following conclusions of law are dis-positive of this case and should be adopted by this court:
7. There is no statutory exemption from the Public Records Law that is applicable to the resumes of the appli*260cants, nominees or finalists for the ASU presidency.
12. The selection process in the future for presidents of any of the institutions of higher education in the State of Arizona would not be harmed but would be benefited from the publication of the names and identifying information of all persons considered by the Board of Regents; the public interest is served by proving that a university presidential search was not rigged nor discriminatory, was authentic, was an open and wide search and was designed to get the best possible person, would permit the public to comment on the qualities or on objections to any persons considered by bringing to the attention of the Board of Regents information regarding those persons which may not be known to the Board of Regents. The court has found that none of the persons on the total list [of 256] would suffer any harm from such disclosure, and therefore the court finds that the publication of the entire list will not reduce the number of qualified candidates which the Board of Regents could initially consider.
Ill
Although line drawing is necessary in balancing the competing interests of open government and confidentiality that may assist the operation of government, I part from the majority because it concludes that both the Board3 and this court have the authority to do the line drawing.
The Arizona Legislature should draw the lines. Ariz. Const, art. III. For instance, the legislature has amended the Open Meetings Law numerous times since 1962. See A.R.S. §§ 38-431 through -431.09; cf. City of Prescott v. Town of Chino Valley, 166 Ariz. 480, 803 P.2d 891 (1990) (legislature recognized 7 specific exceptions to policy in favor of public meetings, see A.R.S. § 38-431.03(A)). The legislature has drawn and redrawn lines; it has balanced the interests regarding government meetings.
More pointedly, the Arizona Legislature has exercised the same discretion in line drawing under the Public Records Law and, in a number of statutes, has adopted exemptions or exceptions. The operative section of the Public Records Law was adopted 90 years ago. A.R.S. § 39-121 tells us:
Public records and other matters in the office of any officer at all times during office hours shall be open to inspection by any person.
The legislature has dealt with “confidentiality” in a variety of ways. Some statutes provide that certain records are exempt records, or are public records with exceptions, or are not public records with or without exceptions. For instance:
the working papers and audit files of the Auditor General “are not public records and are exempt from” the Public Records Law, and may only be disclosed to the Attorney General or a County Attorney, A.R.S. § 41-1279.05(A); the records and other matters of nonprofit corporations that are lessees of the Board of Regents are specifically subject to the Public Records Law, with certain exceptions, A.R.S. § 15-1638(A); the records of the Banking Department relating to financial institutions “shall not be public documents nor shall they be open for inspection by the public,” except that the Superintendent of Banks can disclose information to specific entities, A.R.S. § 6-129(A);
records and information possessed by the Department of Environmental Quality are specifically subject to the Public Records Law, with certain exceptions, A.R.S. § 49-928;
all records of “prisoner care and custody” are specifically subject to the Public *261Records Law, with certain exceptions, A.R.S. § 31-221(C); and architects’ application transcripts, letters of inquiry, references, and investigation files of any pending investigation are “confidential and not public records,” A.R.S. § 32-129.
Additionally, the Arizona Legislature has permitted, in some situations, what the majority suggests the Board of Regents has inherent authority to do — adopt rules regarding specific “confidential” information:
the Department of Health Services must adopt “rules and regulations” to protect “confidential information” as required by state or federal law, A.R.S. § 36-107; the Arizona Health Care Cost Containment System Administration must “prescribe by rule the types of information that are confidential and circumstances under which such information may be used or released,” A.R.S. § 36 — 2903(J); the Board of Psychologist Examiners must adopt “rules and regulations” regarding confidentiality of its records, A.R.S. § 32-2063(A)(7);
the Department of Economic Security shall adopt regulations to protect confidential information, A.R.S. § 46-135; and vital records may not be inspected except pursuant to regulations promulgated by the Department of Health Services, A.R.S. § 36-340(A).
I agree with the majority in Board of Regents v. Atlanta Journal, 259 Ga. 214, 217, 378 S.E.2d 305, 308 (1989):
[t]he public policy issue of what information or actions involved in the search for an official may be withheld from disclosure rests with the legislative branch.
The legislature may act and draw the appropriate lines regarding disclosure, or authorize the Board to adopt rules and regulations regarding confidentiality. Until the legislature acts, this court should apply the broad terms of the Public Records Law to the searches for presidents of the state universities.
IV
The judgment should be affirmed and, because the trial court specifically found that the Board acted in an arbitrary and capricious manner, the Newspapers should recover their requested attorneys’ fees pursuant to A.R.S. § 39-121.02(B).
APPENDIX A
The trial court made the following pertinent findings of fact and conclusions of law:
FINDINGS OF FACT
1. Phoenix Newspapers, Inc., is an Arizona corporation that publishes the Arizona Republic, a daily newspaper published in the State of Arizona. Mary Jo Pitzl is a reporter for the Arizona Republic.
2. Cox Arizona Publications, Inc., is a Delaware corporation that publishes the Mesa Tribune, the Tempe Daily News Tribune and the Chandler Arizonan Tribune, all daily newspapers in the State of Arizona. Eileen Myers was, at all relevant times in this action, a reporter for the Tribune newspapers.
3. Plaintiff Arizona Board of Regents (“the Board”) is a corporate body charged by the Arizona Constitution and Statutes with the governance of the three universities in Arizona. Molly Broad is the Board’s Executive Director and Chief Executive Officer.
4. The presidency of Arizona State University (“ASU”) is a public office funded by the State of Arizona. ASU is the fifth largest publicly funded university in the United States.
5. In August 1988, ASU president J. Russell Nelson announced his intention to resign at the end of the 1988-89 academic year.
6. Thereafter, the Board commenced a search for a new ASU president. The Board consulted professional search firms and other experts in the field of university presidential searches to determine the best way to conduct the search. In November 1988 the Board retained a professional search consultant, Heidrick & Struggles, Inc., to assist in its search for candidates for the ASU presidency. William J. Bowen, Vice President of Heidrick & Struggles, *262held the primary responsibility for his company’s role in the ASU search. The Board concluded, as prior members of the Board in prior searches for university presidents had done, that confidentiality was critical to attracting and recruiting the most highly qualified prospects for the ASU presidency.
7. The Board also formed a 14 person Search Committee made up of a broad cross-section of the university community and the community at large to assist the search consultant in the search process. The Board’s belief regarding the necessity of confidentiality was explained to the members of the Search Committee, each of whom pledged to preserve confidentiality.
9. Heidrick & Struggles, Inc., did not promise confidentiality in the letters it sent to nominees and prospective candidates for the ASU presidency; no written assurance of confidentiality was given to any of the final 17 presidential prospects; these prospects were given oral assurance that the Board would make its best efforts to preserve confidentiality until a mutual level of interest was reached between the prospect and search committee, but that when the prospect became a finalist, his or her name and resume would become public. Mr. Bowen testified that 15 out of the 17 wanted to be assured of confidentiality.
10. Heidrick & Struggles developed a list of 256 prospective candidates, of whom approximately 59 applied. The balance had been nominated or suggested by other persons. Many of those nominated for the ASU presidency were unaware that his or her name had been submitted for consideration and had not given consent to this action. All of the 59 persons who had applied originally were eliminated in the selection process and were not among the 17 prospects interviewed by the Search Committee.
11. The Search Committee narrowed the list of 236 to 17 who met the criteria formulated by the Board. Mr. Bowen contacted the 17 prospects in March of 1989 to arrange for members of the Search Committee to meet each one of them. A high percentage of the 17 had not expressed an interest in applying for the ASU presidency, but were interested in remaining in the search. They had not committed themselves nor fully declared they wanted to be a candidate but they were interested in continuation of the process of development and exploration of mutuality of interest. The remaining 17 persons indicated they would not go forward except for the promise of confidentiality.
12. All 17 final candidates were either flown to Arizona at public expense for interviews with members of the Search Committee or member of the Search Committee traveled at public expense to interview them in their homes states.
13. On November 11, 1988, defendants requested access to the resumes of all persons being considered by the ASU presidential Search Committee and/or the search consultant by February 10, 1989. This request was made pursuant to the Arizona Public Records Law.
14. Future searches for the presidency of institutions of higher education in the State of Arizona will not be harmed by the publication at this time of the resumes of those persons among the 14 named by Mary Jo Pitzl in her article on June 30, 1989, if those named in the article were in fact among those considered by the plaintiff’s Search Committee. This conclusion is based specifically upon the testimony of the plaintiff’s witnesses that those 14 had not applied for or submitted their names for consideration; that they had not declared that they wanted to be a candidate, but that they proceeded with the interviews by the search committee because they were interested in learning more about ASU and were exploring a possible mutuality of interest with the search committee.
15. On February 28, 1989, representatives of the Board and defendants, and their attorneys, met to discuss the pending January 11 records request. At that meeting, representatives of the Board agreed that defendants would be furnished a demographic breakdown of the entire pool of the prospects, and when they had a short list of candidates, defendants would receive the resumes and have the opportunity to *263interview the prospects when they were brought to the campus. The defendants said that they would accept the information given them and not pursue legal action if given timely information. Defendants dispute that they were given timely information or that they were given the “short list” of the prospects.
Mr. Schwartz testified that he believed the defendants would receive a list of 5 to 7 candidates whom the defendants could interview and could write background articles about the accomplishments and strengths of the persons who were being considered by the Board, so that their readers could decide if the right choice was made. Mr. Schwartz further testified that although there was an agreement not to sue that day, the defendants did not agree not to ask for additional information on the candidates and not to sue sometime in the future. He testified that the plaintiff did not promise to furnish the defendants a complete list of the 236 prospects. There was a discussion, according to Mr. Schwartz, about how many would be on the “short list” and the Board’s representatives could not tell the defendants.
Mary Jo Pitzl testified that when she left the February 28th meeting, she felt happy that she would get a meaningful list of the finalist candidates. Mary Jo Pitzl further testified that she had been told that it was highly unlikely that the short list would be only one name, but not impossible; further, that the prospect of litigation was not discussed. None of the defendants agreed not to pursue further information, however, the defendants did not ask for resumes in March, April, or until May 25th. As Ms. Pitzl testified, she agreed at the time with her counsel’s published statement: “The deal we worked out satisfied the public’s right to know.”
The court cannot find that there was a settlement agreement regarding the defendants’ public records request which was violated by the defendants. Both sides apparently believed that the resumes of the final candidates would be furnished to the defendants; and had there been a short list of 5 to 7 names on it, both sides would have been content. However, the plaintiff’s representatives believed all fires had been extinguished and that they could proceed with their selection process, paring the list down. Further oral commitments were made to the prospects that their names would remain confidential until they became final candidates, at which time their names would be released to the public if they wished to go forward as candidates after being given the choice to withdraw from consideration.
16. On April 24, 1989, following input from the members of the search committee, the search consultant concluded that three persons — Dr. Lattie Coor, Dr. Charles Kies-ler and Dr. Gordon Gee — met the criteria of the search committee and that they should be recommended for consideration to the plaintiff, if those persons were willing to have their candidacies go forward publicly. Thereafter these three persons agreed to have their candidacies go forward publicly.
17. During the first week of May 1989, Dr. Gordon Gee withdrew his name from consideration for the ASU presidency.
18. On May 22, 1989, Dr. Charles Kies-ler also withdrew his name from consideration, leaving only one candidate, Dr. Lattie Coor.
19. Thereafter, the members of the Search Committee were asked to reevaluate their recommendations to the Board, but chose not to recommend another final candidate either from the remaining 14 of the 17 originally interviewed by the Search Committee or from the original 236 names given to the Search Committee by Heidrich & Struggles.
20. On May 25, 1989, plaintiff released the names of three “finalists” to defendants and to the public. On the same date, defendants learned that two of three finalists previously had withdrawn from consideration and the list of finalists contained only one viable candidate, Dr. Lattie Coor; at the time of the announcement, the other two finalists had withdrawn their candidacies. Defendants then made another public records request seeking the resumes of all *26417 persons who had been interviewed by the Search Committee.
21. On May 30, 1989, the Regents provided defendants with the resumes of Drs. Lattie Coor, Gee and Kiesler and with the substantially edited resumes of all 17 persons who had been interviewed by the Search Committee.
The board believed that it had complied with the directives of the Arizona Supreme Court in Carlson v. Pima County, 141 Ariz. 487, 687 P.2d 1242, which held that the practical alternative to the complete denial of public access to information sought from a public officer would be by deleting specific personal indentifying information such as names. Molly Broad testified that the purpose of the editing of the resumes was to demonstrate the deep commitment the Board had to get along with the press and to its continued willingness to exhibit good faith; to give the press as much information possible regarding the candidates which would not divulge the identify of the individual and yet demonstrate that qualified and experienced persons were being considered.
The Board then filed a Declaratory Judgment action against defendants to seek guidance from the court to balance the competing values of the public’s right to know and the best interests of the State to attract the highest quality of applicants for the ASU presidency which the Board believed would be jeopardized by the publication of the names of those persons who agreed to be considered for selection. The decision to sue the papers was not made in a public meeting of a quorum of the Board, but instead was carried out pursuant to Board Policy 1-109.
22. On June 14,1989, defendants filed a counterclaim against plaintiff. At the initiation of this action, defendants agreed to pay their attorneys $35,000.00 plus whatever amount the Court might award in attorneys’ fees.
23. Although considerable material had been deleted from the resumes by plaintiff, Mary Jo Pitzl wrote an article on June 30, 1989 in the Arizona Republic in which she identified 14 persons as the remaining undisclosed 14 finalists relying on the edited resumes.
24. On June 29, 1989, Mary Jo Pitzl called one of the members of the Search Committee and that member confirmed to her the names of 12 of the 14 final candidates and one of the finalists, Eugene Tranni of the University of Wisconsin, confirmed that he was among the 17 prospects considered. However, when contacted, he told her: “The last thing I need is my name appearing in your newspaper;” she interpreted his comment that he did not want his name appearing.
25. Prior to the Board’s selection of Dr. Coor, Jack Pfister, a member of both the Board and the Search Committee, acknowledged to a newspaper reporter from Minneapolis that Dean Robert Stein of the University of Minnesota College of Law, was one of the persons interviewed by the Search Committee.
26. Plaintiff’s own witnesses testified that individual candidates would not be harmed if the Board released the names of all the nominees and applicants for the ASU presidency. Mr. Bowen testified that to print the entire list of the 239 names would be “innocuous.” Thomas Bartlett, Chancellor the Oregon State University System, testified that there would be no harm if the Board published a list similar to the list of the 141 candidates released by the University of Texas at Austin (“very little harm” if the entire list were published at the outset of the presidential search). Dr. John Corbally, former President of the University of Illinois system, testified that the individual candidates would not be harmed if the Board released the full list of names.
27. The Board did not present the name of one person who has been or would be harmed by being identified publicly as a candidate in the ASU presidential search. Plaintiff sought to have an in camera hearing wherein 6 of the 14 persons interviewed by the Search Committee could testify by phone — under an order of confidentiality to prevent their identifies from being revealed on the record — presumably about *265the harm that could result to those candidates whose identifies were disclosed or to Arizona’s universities if the most well qualified person refused to participate in the selection process. The court declined to exclude defendants from any such hearing.
However, some of plaintiff’s witnesses testified, without ever naming the person involved, of specific harm which befell others who were not selected but whose identity was revealed.
John Phillips, an employee of a search firm that is a rival of Heidrick & Struggles, testified about a nationally prominent president of a private college who allowed his name to be considered in a presidential search. When his Board of Trustees learned of this, he was chastised; the second time his name was revealed as a finalist, even though he attempted to withdraw from consideration, the chairman of his board told him to look for another job.
John Corbally, a former president of the University of Illinois system, testified he personally would not apply for a presidential position; that the prospect is sought out and recruited; that in the 1971 search for the presidency of Ohio University, five sitting presidents were finalists, but when it became necessary to publish their names, all 5 of them withdrew and there had to be a second search. He testified that the cream of the applicants would withdraw or refuse to he considered leaving the pool reduced; and without confidentiality there would be a smaller pool of candidates from which to select.
Tom Bartlett, Chancellor of the Oregon System of Higher Education, testified on a search in which he was involved in Oregon when he advised the 3 or 4 finalists that they would be subject to public interviews, only one agreed to have his name made public and the other prospects withdrew, leaving only one person (who was a good man). He further testified briefly about the harm to a midwestem president of a school who was put on probation when his institution learned that his name was being considered for another position.
Ira Michael Heyman, Chancellor of the University of California, Berkeley, submitted an affidavit which stated that in his opinion well-qualified candidates are not willing to be considered unless they can be assured of confidentiality from the outset, or only in the case they are finalists for the position for the reasons their interest in other positions undercuts the trust and confidence of their current boards to know of their interest at another university. His affidavit states of one provost search and one vice chancellor search in which candidates who were very well qualified withdrew because the information concerning their interest was made public.
28. Defendants, however, obtained admissions from plaintiff’s witnesses of many identified persons who were considered publicly for other university presidencies on several occasions, and had suffered no harm to date, namely, Dean C. Roland Ha-den at Arizona State University College of Engineering who was a candidate for the presidency of Texas Tech University, one of five finalists for the chancellory of Louisiana State University, and possibly one of the 17 finalists for the ASU presidential search involved in this action.
Southern Illinois University Chancellor Lawrence K. Pettit, who was identified as among 162 candidates for the presidency of Texas Tech, and possibly one of the 17 considered for the presidency of ASU.
That two of those persons whose names had been revealed in Mary Jo Pitzl’s article as being among the 14 undisclosed final prospects for the ASU presidency were selected for other university presidencies.
That to date there has been no evidence of harm to either of the two finalists who withdrew before the final selection for the ASU presidency, namely University of Colorado President Gordon Gee or Vanderbilt University Provost Charles Kiesler.
The finalist who was selected as the ASU president, Lattie Coor, had been publicly named as a candidate for three other university presidential searches and suffered no harm from his name being publicized in those searches without success.
*266CONCLUSIONS OF LAW
1. This court has jurisdiction over plaintiff’s complaint pursuant to A.R.S. § 12-1831 et seq., and over the defendants’ counterclaim pursuant to Arizona Rules of Procedure for Special Actions and A.R.S. § 39-121.02.
2. Each member of the Board and its Search Committee is a “public officer” as defined by A.R.S. § 39-121.01(A)(l).
3. As the Board’s Executive Director and Chief Executive Officer, Molly Broad, is a “public officer” as defined in A.R.S. § 39-121.01(A)(l).
4. Pursuant to A.R.S. § 39-121.01(B), the resumes of the applicants for the ASU presidency are “public records” because they are “records reasonably necessary or appropriate” for the plaintiff and its Chief Executive Officer, Mrs. Broad, “to maintain an accurate knowledge of their official activities.” A.R.S. § 39-121.01(B).
5. Pursuant to A.R.S. § 39-121, “[p]ublic records and other matters in the office of a public officer at all times during office hours shall be open to inspection by any person.” In light of the statutory policy favoring disclosure, there is a presumption that the records maintained by a public officer are open to the public for inspection. Carlson v. Pima County, 141 Ariz. 487, 687 P.2d 1242 (1984).
6. The Board must “appoint and employ” presidents for the three state universities, including Arizona State University. A.R.S. § 15-1626(A)(2).
7. There is no statutory exemption from the Public Records Law that is applicable to the resumes of the applicants, nominees or finalists for the ASU presidency.
8. A public officer or custodian of the public record may refuse inspection of the public record where the unlimited right of inspection might lead to substantial and irreparable private or public harm; thus were the countervailing interests of confidentiality, privacy or the best interests of the state in carrying out its legitimate activities outweigh the general policy of public access, the public officer may deny the inspection of the records. Carlson, 141 Ariz. 487, 687 P.2d 1242.
9. The refusal of the public officer to permit inspection of a public record is subject to judicial scrutiny.
10. The court cannot find that there was a settlement agreement regarding the defendants’ public records request which was violated by the defendants. See Findings of Fact, paragraph 15.
11. The selection process for the presidency of institutions of higher education in the State of Arizona would not be harmed by the publication of the names and titles of the entire list of persons whose names were suggested for consideration by the Board of Regents at the time the list was completed. This conclusion is based specifically upon the testimony of plaintiff’s witnesses that many of those persons had not applied for or submitted their names for consideration, but they were unaware that their names had been suggested by other persons, and therefore they truthfully could deny that they were considering any move from their present positions.
12. The selection process in the future for presidents of any of the institutions of higher education in the State of Arizona would not be harmed but would be benefited from the publication of the names and identifying information of all persons considered by the Board of Regents; the public interest is served by proving that a university presidential search was not rigged nor discretionary, was authentic, was an open and wide search and was designed to get the best possible person, would permit the public to comment on the qualities or on objections to any persons considered by bringing to the attention of the Board of Regents information regarding those persons which may not be known to the Board of Regents. The court has found that none of the persons on the total list would suffer any harm from such disclosure, and therefore the court finds that the publication of the entire list will not reduce the number of qualified candidates which the Board of Regents could initially consider.
*26713. In all probability, any harm that could befall any of the remaining 14 “finalists” by now being identified publicly has occurred already. In all probability, defendants have identified them in their newspapers from (a) the edited resumes furnished to the defendants by the plaintiff; (b) a Search Committee member who confirmed for the Arizona Republic the names of 12 of the 14 unidentified finalists; (c) Jack Pfister, a member of the Board, who confirmed the identity of one of the “finalists” for a Minneapolis newspaper; or (d) one of the candidates who admitted to Ms. Pitzl that he had been one of the 17 “finalists.” The court assumes that publicity concerning those persons named by Ms. Pitzl reached the constituencies of those persons names; and further, that they have now commenced their academic duties in their present positions.
14. Future searches for the presidency of institutions of higher education in the State of Arizona will not be harmed by the publication at this time of the resumes of those persons among the 14 named by Mary Jo Pitzl in her article on June 30, 1989, if those named in the article were in fact among those considered by the plaintiffs Search Committee. This conclusion is based specifically upon the testimony of the plaintiff’s witnesses that those 14 had not applied for or submitted their names for consideration; that they had not declared that they wanted to be a candidate, but that they proceeded with the interviews by the search committee because they were interested in learning more about ASU and were exploring a possible mutuality of interest with the search committee.
15. The court does not, cannot, and need not make a factual finding that the best interests of the State of Arizona in the future selection process of presidents of the state universities would or would not be harmed if the identities of those persons interviewed prior to the selection of the final candidates were disclosed. Unfortunately in this case, promises of an effort to keep their names confidential were made to those interviewed. The court has heard and considered the testimony of many highly respected persons on both sides of the issue. It is also unfortunate, in this instance, that there was public disclosure of only one viable person from the entire selection process.
16. Plaintiff did not act in an arbitrary and capricious manner by refusing to release the resumes of the 17 persons who had been interviewed by the Selection Committee prior to the choice of the three finalists whose names were disclosed. The plaintiff’s concern was genuine and its motivation was the best interests of the State of Arizona to enhance the quality of education in the state by the selection of the most qualified president of one of the institutions of higher education.
17. However several of the Board’s witnesses testified that there would be no harm to the individuals if the names of all persons originally on the list were disclosed. These opinions were available to the Board prior to the filing of this action. The court finds by clear and convincing evidence that the Board’s refusal to disclose the entire list of 256 presidential candidates was arbitrary and capricious.
18. The Board’s decision to file the lawsuit against the defendants on May 25, 1989 was not “legal action transacted by the plaintiff during a meeting held in violation” of the Open Meetings Law, A.R.S. § 38-431 et seq.
19. When it filed its Complaint for Declaratory Judgment in this action, the Board did not comply with its own Policy 1-109, which requires that no new litigation be initiated in the name of the Board without specific authorization by the Board. There was no emergency on May 25, 1989 that would have permitted initiation of litigation by Board Counsel pursuant to Policy 1-109 without the Board’s authorization at a regularly noticed meeting.
20. With regard to the effect of the initiation of litigation contrary to the Board’s policy, any amendment and/or supplementation of the statutes must be achieved elsewhere. Technically, the Board did not violate the Open Meetings Law but well may have violated the spirit *268of the law. In addition, plaintiff has not achieved any recovery from its complaint; the issue of whether this litigation is null and void is now moot.
21. Insofar as the plaintiff’s Cross-Motion for Summary Judgment requests a determination that 72-hour notice of the June 6, 1989 meeting was not required;
IT IS ORDERED granting Plaintiff’s Cross-Motion for Summary Judgment.
IT IS FURTHER ORDERED that the Board disclose the entire list of names, addresses and employment status at the time their resumes were considered of all persons whose names were given to the Board by its search consultant, Heidrick & Struggles, for the ASU presidential search.
IT IS FURTHER ORDERED that the Board furnish the defendants with the resumes of any person not previously disclosed by the Board who was named in the June 30, 1989 Arizona Republic article written by Mary Jo Pitzl if that person was one of the 17 persons interviewed by the Board’s search committee.
With regard to defendants’ Application for Fees, it appearing that the total amount which the defendants in fact were obligated to pay to their counsel in this cause is $35,000.00.
IT IS ORDERED awarding to the defendants $35,000.00 in attorneys’ fees and $3,317.65 in costs. Because defendants originally had agreed to pay their attorneys $35,000 plus whatever the Court might award in attorneys’ fees, defendants are only obligated to pay attorneys’ fees of $35,000. Similarly, under A.R.S. § 12 — 348(D)(2), defendants are entitled to no more than $35,000 because that is the amount they have “agreed to pay” their attorneys.
IT IS ORDERED awarded defendants as and for their attorneys’ fees in this case the sum of $35,000.00
. The Board drew lines in this case. It had an agreement with the Newspapers to release the names of "any finalists.” The Board also agreed to give the Newspapers "meaningful access to the finalists’ resumes.” When the "list” of three "finalists” was made public on May 25, 1989, two of the three had already withdrawn from consideration, presenting the Newspapers and the public with a list of one finalist.