SUPREME COURT OF ARIZONA
EN BANC
STANLEY GRIFFIS, ) Arizona Supreme Court
) No. CV-06-0312-PR
Plaintiff/Appellant, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-CV 06-0052
PINAL COUNTY, )
) Pinal County
Defendant/Appellee, ) Superior Court
) No. CV2006-00147
)
and )
)
PHOENIX NEWSPAPERS, INC., an ) O P I N I O N
Arizona corporation, )
)
Intervenor/Appellee. )
)
__________________________________)
Appeal from the Superior Court in Pinal County
The Honorable Robert Duber
REVERSED; REMANDED
________________________________________________________________
Opinion of the Court of Appeals, Division Two
213 Ariz. 300, 141 P. 3d 780 (2006)
VACATED
________________________________________________________________
FENNEMORE CRAIG PC Phoenix
By Timothy Berg
Janice Procter-Murphy
Theresa Dwyer
Attorneys for Stanley Griffis
ROBERT CARTER OLSON, PINAL COUNTY ATTORNEY Florence
By Chris M. Roll, Deputy County Attorney
Allen C. McVey, Deputy County Attorney
Attorneys for Pinal County
STEPTOE & JOHNSON LLP Phoenix
By David Jeremy Bodney
Peter S. Kozinets
Chris Moeser
Attorneys for Phoenix Newspapers, Inc.
MAYNARD CRONIN ERICKSON CURRAN & SPARKS PLC Phoenix
By Daniel D. Maynard
Douglas C. Erickson
And
THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS Arlington, VA
By Lucy A. Dalglish
Loren A. Cochran
And
FLETCHER HEALD & HILDRETH PLC Arlington, VA
By Kevin M. Goldberg
And
THE ASSOCIATED PRESS New York, NY
By David H. Tomlin
And
NEWSPAPER ASSOCIATION OF AMERICA Arlington, VA
By Rene P. Milam
And
BAKER & HOSTETLER LLP Washington, DC
By Bruce W. Sanford
Bruce D. Brown
Laurie A. Babinski
And
WILEY REIN LLP Washington, DC
By Kathleen A. Kirby
Attorneys for Amici Curiae The Reporters Committee for Freedom
of the Press, American Society of Newspaper Editors, The
Associated Press, Newspaper Association of America, Society of
Professional Journalists, and Radio and Television News
Directors Association
2
M c G R E G O R, Chief Justice
¶1 We granted review to consider whether purely personal
e-mails generated or maintained on a government e-mail system
are, as a matter of law, public records under Arizona’s public
records law, Arizona Revised Statutes (A.R.S.) sections 39-121
to 39-121.03 (2001 & Supp. 2006).1 We hold that such e-mails do
not necessarily qualify as public records. We further hold 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.
I.
¶2 In late 2005, the Pinal County Sheriff’s Office began
an investigation of then-County Manager Stanley Griffis after
learning of Griffis’ unauthorized purchase of sniper rifles and
other equipment with county funds.2 Phoenix Newspapers, Inc.
1
This case raises neither the issue of whether Pinal County,
as the owner of the computer system, can access an employee’s e-
mails nor the issue of access to a government employee’s e-mails
when excessive e-mail use is the reason for termination. Cf.
Tiberino v. Spokane County, 13 P.3d 1104, 1108 (Wash. Ct. App.
2000) (holding that personal e-mails may become public records
when excessive use of personal e-mail is the reason for an
employee’s discharge and the e-mails are printed for use in a
wrongful termination suit against the government agency).
2
Griffis was suspended from his position in December 2005
and retired shortly thereafter. In January 2007, he entered into
3
(PNI) filed a public records request with Pinal County (the
County) pursuant to A.R.S. §§ 39-121 to -121.03, seeking release
of all e-mails sent to or received by Griffis on the County’s e-
mail system from October 1 to December 2, 2005. The County
released 706 e-mails, but withheld others it and Griffis
considered personal or confidential. After PNI threatened to
sue, the County agreed to release the previously withheld e-
mails and notified Griffis of its decision.
¶3 Griffis obtained a preliminary injunction blocking
release of e-mails that both he and the County initially had
agreed were personal. PNI moved to intervene and dissolve the
injunction, and the County joined this motion. The County then
prepared a log identifying each e-mail subject to the injunction3
and allowed Griffis to redact any personal information before
providing the log to PNI. Griffis chose to disclose
approximately thirty of the e-mails listed in the log.
¶4 The superior court granted PNI’s motion to dissolve
the injunction, ruling that the remaining e-mails should be
disclosed, but giving Griffis the opportunity to redact any
personal information. The superior court noted that “everything
a plea agreement with the State with respect to the criminal
charges filed against him.
3
The log contained the date and time sent, sender,
recipient, subject line, and number of pages for each e-mail.
4
that is on a computer of the Pinal County . . . governmental
entity is presumed to be a public record” and that “any records
generated on a public computer are presumptively open to public
inspection.” Although it found the e-mails to be presumptively
public records, the superior court offered to conduct an in
camera inspection of the disputed e-mails to determine whether
Griffis could establish an expectation of privacy that would
overcome that presumption. Griffis declined and appealed the
decision.
¶5 The court of appeals, relying on Salt River Pima-
Maricopa Indian Community v. Rogers, 168 Ariz. 531, 815 P.2d 900
(1991), reversed the superior court’s judgment, holding that
personal e-mails are not “public records or other matters” under
Arizona’s public records law and, therefore, need not be
disclosed. Griffis v. Pinal County, 213 Ariz. 300, 309 ¶ 33,
311 ¶ 42, 141 P.3d 780, 789, 791 (App. 2006). The court of
appeals, like the superior court, did not review the content of
the disputed e-mails. Id. at 313-14 n.14 ¶ 50, 141 P.3d at 793-
94.
¶6 PNI petitioned for review, arguing that the court of
appeals misapplied Salt River and ignored Arizona’s longstanding
presumption in favor of providing public access to government
records. Alternatively, PNI urges us to remand for an in camera
inspection of the disputed e-mails to determine whether they
5
fall within the scope of the public records law. We have
jurisdiction pursuant to Article 6, Section 5, Clause 3 of the
Arizona Constitution and A.R.S. § 12-120.24 (2003).
II.
¶7 Whether a document is a public record under Arizona’s
public records law presents a question of law, which we review
de novo. See Cox Ariz. Publ’ns, Inc. v. Collins, 175 Ariz. 11,
14, 852 P.2d 1194, 1198 (1993).
A.
¶8 We have set forth the legal principles that control
the issue raised here in previous public records cases. See
Salt River, 168 Ariz. at 537-42, 815 P.2d at 906-11.4 As an
initial matter, Arizona law defines “public records” broadly and
creates a presumption requiring the disclosure of public
documents. See Carlson v. Pima County, 141 Ariz. 487, 489-90,
687 P.2d 1242, 1244-45 (1984). Section 39-121 of the Arizona
Revised Statutes affirms the presumption of openness, stating
that “[p]ublic records and other matters in the custody of any
officer shall be open to inspection by any person at all times
4
PNI attempts to minimize Salt River’s importance in
resolving the issue before us on the grounds that it involves a
unique intersection of state, federal, and tribal law. We
disagree. Although the document at issue in Salt River was a
check distribution list of amounts paid to tribal allottees, 168
Ariz. at 535, 815 P.2d at 904, the principles outlined in that
case apply to all public records disputes.
6
during office hours.” Although the phrase “public records and
other matters” is not expressly defined by statute, A.R.S. § 39-
121.01.B (Supp. 2006) requires that “[a]ll officers and public
bodies shall maintain all records . . . reasonably necessary or
appropriate to maintain an accurate knowledge of their official
activities and of any of their activities which are supported by
monies from the state or any political subdivision of the
state.”5
¶9 In Salt River, this Court articulated three
alternative definitions of public records: A public record is
one “made by a public officer in pursuance of a duty, the
immediate purpose of which is to disseminate information to the
public, or to serve as a memorial of official transactions for
public reference”; a record that is “required to be kept, or
necessary to be kept in the discharge of a duty imposed by law
or directed by law to serve as a memorial and evidence of
something written, said or done”; or any “written record of
transactions of a public officer in his office, which is a
convenient and appropriate method of discharging his duties, and
is kept by him as such, whether required by . . . law or not.”
168 Ariz. at 538-39, 815 P.2d at 907-08 (quoting Mathews v.
5
Because the language of A.R.S. § 39-121.01.B is so broad,
this Court has abandoned any “technical distinction” between
public records and other matters. Carlson, 141 Ariz. at 490,
687 P.2d at 1245.
7
Pyle, 75 Ariz. 76, 78-79, 251 P.2d 893, 895 (1952)).
¶10 The broad definition of public records, however, is
not unlimited. The public records law requires all public
officials to make and maintain records “reasonably necessary to
provide knowledge of all activities they undertake in the
furtherance of their duties.” Carlson, 141 Ariz. at 490, 687
P.2d at 1245 (emphasis added). That definition does not
encompass documents of a purely private or personal nature.
Instead, only those documents having a “substantial nexus” with
a government agency’s activities qualify as public records.6
Salt River, 168 Ariz. at 541, 815 P.2d at 910. “[T]he nature
and purpose of the document” determine its status as a public
record. Id. at 538, 815 P.2d at 907 (quoting Linder v. Eckard,
152 N.W.2d 833, 835 (Iowa 1967)). Determining a document’s
status, therefore, requires a content-driven inquiry.
¶11 Because the nature and purpose of the document
determine its status, mere possession of a document by a public
officer or agency does not by itself make that document a public
record, id., nor does expenditure of public funds in creating
the document, id. at 540-41, 815 P.2d at 909-10. To hold
otherwise would create an absurd result: Every note made on
6
Although not at issue here, “other matters” likewise
includes only public matters. Salt River, 168 Ariz. at 539, 815
P.2d at 908.
8
government-owned paper, located in a government office, written
with a government-owned pen, or composed on a government-owned
computer would presumably be a public record. Under that
analysis, a grocery list written by a government employee while
at work, a communication to schedule a family dinner, or a
child’s report card stored in a desk drawer in a government
employee’s office would be subject to disclosure. The public
records law was never intended to encompass such documents; the
purpose of the law is to open government activity to public
scrutiny, not to disclose information about private citizens.
See id.; accord State v. City of Clearwater, 863 So. 2d 149, 154
(Fla. 2003) (noting the absurdity of classifying household bills
or notes about personal conversations as public records simply
because they are located in a government office); cf. Bureau of
Nat’l Affairs, Inc. v. United States Dep’t of Justice, 742 F.2d
1484, 1486 (D.C. Cir. 1984) (holding that personal appointment
materials, such as calendars and daily agendas, are not agency
records under the Freedom of Information Act, 5 U.S.C. § 552
(2006)).
¶12 Although the public records law creates a strong
presumption in favor of disclosure, that presumption applies
only when a document first qualifies as a public record. To
apply a presumption of disclosure when a question exists as to
the nature of the document is inappropriate: The initial inquiry
9
must be whether the document is subject to the statute. Salt
River, 168 Ariz. at 536, 815 P.2d at 905. The reason for this
requirement is clear: Disclosure of purely private documents
does nothing to advance the purposes underlying the public
records law. The contents of purely private documents shed no
light on how the government is conducting its business or
spending taxpayer money.
¶13 Determining whether the public records law requires
disclosure, then, involves a two-step process. When the facts
of a particular 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. Id. If a document falls within
the scope of the public records statute, then the presumption
favoring disclosure applies and, when necessary, the 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.7 E.g., Carlson, 141 Ariz. at 490-
91, 687 P.2d at 1245-46.
7
Most public records cases concern only the interest-
balancing step because the documents at issue are clearly public
records. See, e.g., Scottsdale Unified Sch. Dist. No. 48 v.
KPNX Broad. Co., 191 Ariz. 297, 955 P.2d 534 (1998); Cox Ariz.
Publ’ns, 175 Ariz. 11, 852 P.2d 1194; Carlson, 141 Ariz. 487,
687 P.2d 1242. As Salt River makes clear, however, courts must
also ensure that disputed documents are public records within
the meaning of the statute. 168 Ariz. at 536, 815 P.2d at 905.
10
B.
¶14 Applying the principles discussed above, we reject
PNI’s argument that all e-mails generated or maintained on a
government-owned computer system are automatically public
records. Some e-mails will relate solely to personal matters
and will not, therefore, reflect the requisite substantial nexus
with government activities. Accord Denver Publ’g Co. v. Bd. of
County Comm’rs, 121 P.3d 190, 192, 199 (Colo. 2005); City of
Clearwater, 863 So. 2d at 152-54; State ex rel. Wilson-Simmons
v. Lake County Sheriff’s Dep’t, 693 N.E.2d 789, 792-93 (Ohio
1998). On the other hand, many e-mails generated or retained on
a government computer system are public records because they
relate to government business. The issue, then, is how a court
should determine whether requested e-mails are subject to
disclosure under the public records law when the facts raise a
substantial question as to the nature of the document.
III.
¶15 Comparing the nature and purpose of a document with an
official’s or agency’s activities to determine whether the
required nexus exists necessarily requires a fact-specific
inquiry. To make that inquiry, while maintaining the privacy of
personal, non-public documents, a court should perform an in
camera review. See Church of Scientology v. City of Phoenix
Police Dep’t, 122 Ariz. 338, 339, 594 P.2d 1034, 1035 (App.
11
1979) (noting that the trial court performed an in camera
inspection before ruling that the documents at issue were not
public records). In camera review of disputed documents also
reinforces this Court’s previous holding that the courts, rather
than government officials, are the final arbiter of what
qualifies as a public record. See Mathews, 75 Ariz. at 80-81,
251 P.2d at 896 (rejecting the governor’s assertion that his
decision on what documents were public records was final).
¶16 To further Arizona’s strong policy of public access
and disclosure of public records, the threshold showing needed
to raise a “substantial question” about a document’s status must
be relatively low. When, as in this case, the question is
whether e-mails from or to a public official are public records,
we hold that a party can raise a substantial question by showing
that a government agency or public official withheld documents
generated or maintained on a government-owned computer on the
grounds that those documents are personal or private. Once a
requesting party makes this basic showing, that party can ask
the court to conduct an in camera inspection of any withheld
documents to determine whether they possess the requisite nexus
with official duties that is required of all public records.8
8
Our courts have long approved of in camera review during
the second step of public records analysis to determine whether
privacy interests, confidentiality, or the best interests of the
state outweigh the public’s right of access to documents that
12
The party claiming that the disputed documents are not public
records bears the burden of establishing its claim. If the
party cannot establish that the documents are not public
records, the trial judge can still consider whether privacy,
confidentiality, or the best interests of the state outweigh the
policy in favor of disclosure. See, e.g., Carlson, 141 Ariz. at
490-91, 687 P.2d at 1245-46.
¶17 In this case, no court has reviewed the e-mails at
issue. Absent such a review, we have no record on which we can
determine the nature and content of the requested documents. We
therefore remand this case to permit the superior court to
review the content of the disputed e-mails in camera to
determine whether they are subject to the public records law.
Griffis bears the burden of establishing that the e-mails are
not public records.
IV.
¶18 For the foregoing reasons, we reverse the ruling of
have already been categorized as public records. See, e.g., Cox
Ariz. Publ’ns, 175 Ariz. at 15, 852 P.2d at 1199; Mitchell v.
Superior Court, 142 Ariz. 332, 334, 690 P.2d 51, 53 (1984);
Carlson, 141 Ariz. at 491, 687 P.2d at 1246; Mathews, 75 Ariz.
at 80-81, 251 P.2d at 896-97; Bolm v. Custodian of Records, 193
Ariz. 35, 40-41 ¶ 14, 969 P.2d 200, 205-06 (App. 1998); Church
of Scientology, 122 Ariz. at 339, 594 P.2d at 1035. Our holding
today, that a party can request in camera review on the issue of
whether a document is a public record, permits the parties to
follow a procedure parallel to the procedure followed during the
second step of public records analysis.
13
the superior court, vacate the opinion of the court of appeals,
and remand to the superior court for further proceedings
consistent with this opinion.
_______________________________________
Ruth V. McGregor, Chief Justice
CONCURRING:
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
W. Scott Bales, Justice
14