London v. Broderick

SUPREME COURT OF ARIZONA
En Banc

FREDERIC LONDON, a married man, ) Arizona Supreme Court
) No. CV-03-0090-PR
Plaintiff-Appellant, )
) Court of Appeals
v. ) Division One
) Nos. 1 CA-CV 01-0605
BARBARA BRODERICK, Chief ) 1 CA-SA 02-0037
Probation Officer; VICKI BIRO, ) (Consolidated)
Division Director; MARICOPA )
COUNTY ADULT PROBATION ) Maricopa County
DEPARTMENT, a State entity, ) Superior Court
) Nos. CV 01-005377
Defendants-Appellees. ) CV 01-009342
__________________________________)
)
FREDERIC LONDON, a married man, )
)
Petitioner, ) O P I N I O N
)
v. )
)
THE HONORABLE COLIN F. CAMPBELL, )
JUDGE OF THE SUPERIOR COURT OF )
THE STATE OF ARIZONA, in and for )
the County of MARICOPA, )
)
Respondent Judge, )
)
BARBARA BRODERICK, Chief )
Probation Officer; VICKI BIRO, )
Division Director; MARICOPA )
COUNTY ADULT PROBATION )
DEPARTMENT, a State entity, )
)
Real Parties in Interest. )
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Colin F. Campbell, Judge
The Honorable Roland J. Steinle, III, Judge

AFFIRMED
_________________________________________________________________
 Opinion of the Court of Appeals, Division One
204 Ariz. 272, 63 P.3d 303 (App. 2003)

VACATED
_________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
by Michael M. Walker, Assistant Attorney General
Attorneys for Defendants-Appellees/Real Parties in Interest

RYAN WOODROW & RAPP, PLC Phoenix
by Martin A. Bihn
and Donna M. McDaniel
and Frank L. Migray
Attorneys for Plaintiff-Appellant/Petitioner
_________________________________________________________________

B E R C H, Justice

¶1 This case analyzes whether Arizona Supreme Court Rule

123, the court’s “open records” provision, permits a probation

department employee who faces disciplinary charges to obtain

disclosure of the employer’s investigatory file pertaining to those

charges before the employee’s pre-disciplinary interview. We

conclude that while Rule 123 creates a presumption that court

records are available for public viewing, the custodian may

overcome that presumption by showing that the government’s interest

in confidentiality outweighs the public’s interest in disclosure.

Because in this case the Maricopa County Adult Probation Department

has shown an interest that overcomes the presumption of openness

and outweighs the public interest in disclosure, we affirm the

decision of the trial court that the investigatory file need not be

disclosed before the pre-disciplinary interview.

- 2 -
 FACTUAL AND PROCEDURAL BACKGROUND

¶2 Frederic London worked for the Maricopa County Adult

Probation Department (“MCAPD”) as a probation officer. In late

December of 2000, responding to allegations that London had engaged

in misconduct, MCAPD placed him on administrative leave. On

February 8, 2001, MCAPD gave London a seven-page notice, setting

forth in detail the charges against him. It also advised London

that he could respond to the charges in writing and at a “pre-

disciplinary hearing.”1

¶3 Before London’s pre-disciplinary interview, he made a

public records request seeking several items, including MCAPD’s

investigatory file containing evidence of the charges against him.

MCAPD made some documents available to London, but advised him that

the investigative file was not public and would not be released

until after the pre-disciplinary interview, which took place on

March 19, 2001. At the interview, only some of the charges were

discussed. The parties agreed to postpone discussion of several

1
Although denominated a “hearing,” the “pre-disciplinary
hearing” allowed by the Judicial Merit System Resolution and Rules
is merely an interview that provides the employee an opportunity to
respond to charges and tell his or her side of the story. See
Judicial Merit System Resolution & Rules (“J.M.S.”) § 16(E) and R.
10.03(A). After the pre-disciplinary interview, the appointing
authority determines whether to take disciplinary action and, if
so, what sanction to impose. Id. R. 10.03(B). The employee may
“appeal” the determination within ten days. Id. § 17(A) and R. 11.
The appeal is more like a trial, at which facts are found and
conclusions of law drawn. See id. In this case, once discipline
was imposed, MCAPD provided London the investigatory file to aid in
his preparation for his appeal.
- 3 -
other charges pending the outcome of London’s challenge to MCAPD’s

refusal to disclose the investigatory file.

¶4 London filed a special action in superior court based on

Arizona’s Public Records Act, Ariz. Rev. Stat. (“A.R.S.”) § 39-121

to -125 (2001 & Supp. 2002), and a separate administrative review

action pursuant to Supreme Court Rule 123, the court’s open records

provision, to compel production of the investigatory file. In the

administrative review action, Presiding Judge Colin F. Campbell

found that the file was not subject to disclosure under Rule 123.

In the special action, Judge Roland J. Steinle, III, concluded that

the records were “confidential by law and not subject to disclosure

under A.R.S. § 39-121.”

¶5 London appealed both rulings. On appeal, London conceded

that Rule 123, and not the Public Records Act, controlled the

inquiry. Thus the court of appeals addressed only London’s Rule

123 claim, concluding that nothing in Rule 123 exempts the

investigatory file from disclosure and reversing Judge Campbell’s

decision. See London v. Broderick, 204 Ariz. 272, 274, ¶ 2, 63

P.3d 303, 305 (App. 2003).

¶6 We granted MCAPD’s petition for review to resolve whether

Arizona Supreme Court Rule 123 permits a probation department

employee who faces disciplinary charges to obtain the investigatory

file pertaining to those charges before the pre-disciplinary

interview. We conclude that the file may be shielded from

- 4 -
disclosure at least until the charges have been substantiated.

DISCUSSION

A. Mootness

¶7 Because London was eventually given his investigatory

file before his hearing on the decision to terminate his

employment, the issue presented in this case is moot. As a

prudential matter, however, we elect to decide the case because the

issue it raises is important and, as long as there are government

employees, will likely recur. See Big D Constr. v. Court of

Appeals, 163 Ariz. 560, 562-63, 789 P.2d 1061, 1063-64 (1990)

(noting that this court may, as “a matter of prudential or judicial

restraint,” consider moot issues when “significant questions of

public importance are presented and are likely to recur”).

B. Rule 123; Open Records

1. Public records background

¶8 Rule 123, the court’s open records provision, recognizes

the public’s significant interest in access to information

regarding the courts and honors the presumption that court records

be open and available to the public. Its basic disclosure

provision is as follows:

Historically, this state has always favored
open government and an informed citizenry. In
the tradition, the records in all courts and
administrative offices of the Judicial
Department of the State of Arizona are
presumed to be open to any member of the
public for inspection or to obtain copies at
- 5 -
 all times during regular office hours at the
office having custody of the records.

Ariz. R. Sup. Ct. 123(c)(1) (emphasis added). As the public

records law does for public offices, the court’s open records rule

implements the public’s interest in seeing that the courts perform

efficiently and effectively by providing access to court records.

Compare A.R.S. § 39-121 (“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.”), with Ariz. R. Sup. Ct. 123.

Public access to court records helps further the democratic value

of having knowledgeable and informed citizens and is thus

instrumental to a state founded on principles of self-governance.

¶9 But sometimes the benefits of public disclosure must

yield to the burden imposed on private individuals or the

government itself by disclosure. Such circumstances have spawned

common-law limitations on public disclosure to protect privacy

interests, confidential information, and certain governmental

interests. See, e.g., Carlson v. Pima County, 141 Ariz. 487, 491,

687 P.2d 1242, 1246 (1984) (noting that “an unlimited right of

inspection might lead to substantial and irreparable private or

public harm,” which must be weighed against “the general policy of

open access” to determine whether disclosure is proper); Mathews v.

Pyle, 75 Ariz. 76, 80-81, 251 P.2d 893, 896 (1952) (holding that if

disclosure “would be detrimental to the best interests of the

- 6 -
state,” records may be kept from the public). These common-law

limitations attempt to accommodate the tension between the public

right to open government and the need to protect confidential

information, personal privacy of those who interact with government

offices, and overriding interests of the government. See Carlson,

141 Ariz. at 490, 687 P.2d at 1245. These common-law exceptions to

disclosure circumscribe unfettered access and allow the government

to withhold documents from the public if the custodian of the

records articulates sufficiently weighty reasons to tip the balance

away from the presumption of disclosure and toward non-disclosure.

¶10 Section (c)(1) of Rule 123 incorporates into the court’s

open records rule provisions analogous to the common-law exceptions

to the public records law. Section (c)(1) provides that “in view

of the possible countervailing interests of confidentiality,

privacy or the best interests of the state[,] public access to some

court records may be restricted or expanded . . . .” Ariz. R. Sup.

Ct. 123(c)(1). Rule 123 also exempts from presumptive disclosure

several other categories of records: certain employee records,

employment or volunteer applications, judicial case assignments,

security records, procurement records, pre-decisional documents,

library records, attorney and judicial work product, juror records,

proprietary and licensed material, and copyrighted documents and

materials. See id. § (e)(1)–(11). Rule 123 also provides several

exceptions, based on practical considerations, that allow the

- 7 -
courts to shield documents if disclosure would impose “an undue

financial burden,” or the request is duplicative or “harassing[,]

or substantially interfere[s]” with court functions or operations.

Id. § (f)(4)(A)(i)-(iv). Rule 123’s explicit exceptions to

disclosure and the common-law exceptions included in section (c)(1)

allow the courts to perform their duties efficiently, without

imposing an unjustified burden on requesting individuals or the

courts.2

2. Application of Rule 123 to this case3

¶11 One seeking documents from the court need not state a

reason for requesting them. We presume that public documents will

be disclosed. See id. § (c)(1). If a request is delayed or

denied, the custodian must provide a written explanation of reasons

for denying the request. See id. § (f)(4)(B)(i). If the custodian

of court records articulates a valid interest in shielding a

2
Because the exceptions listed in section (c)(1) parallel their
public records law counterparts, we will apply existing standards
and public records caselaw in interpreting the Rule 123(c)(1)
exceptions.
3
Both trial courts found the investigative file to be non-
disclosable. These decisions of law were based on factual
findings, which we review for clear error. Scottsdale Unified Sch.
Dist. v. KPNX Broad. Co., 191 Ariz. 297, 302, ¶ 20, 955 P.2d 534,
539 (1998); Bd. of Regents v. Phoenix Newspapers, Inc., 167 Ariz.
254, 257, 806 P.2d 348, 351 (1991). We may, however, draw our own
conclusions of law. Scottsdale Unified Sch. Dist., 191 Ariz. at
302, ¶ 20, 955 P.2d at 539; Bd. of Regents, 167 Ariz. at 257, 806
P.2d at 351. Because the ultimate determination involves a mixed
question of fact and law, our review of a denial of access to
public records is de novo. Scottsdale Unified Sch. Dist., 191
Ariz. at 302, ¶ 20, 955 P.2d at 539; Cox Ariz. Publ’ns, Inc. v.
- 8 -
document, however, the presumption of disclosure evaporates and the

court’s interest in non-disclosure is balanced against the public

interest in obtaining the records. Scottsdale Unified Sch. Dist.

v. KPNX Broad. Co., 191 Ariz. 297, 300, ¶ 9, 955 P.2d 534, 537

(1998).

¶12 In response to London’s request for the investigatory

file in this case, MCAPD asserted that the file should remain

confidential to protect the Department’s preliminary information-

gathering ability and to allow it to fully explore “ideas prior to

making a decision affecting internal processes or deciding to take

considered options public.” In an “In Camera Memorandum,” MCAPD

claimed that disclosing the file before the initial interview would

chill potential witnesses from coming forward, frustrate the

ongoing investigation by permitting London to tailor his responses

to the known evidence, and place the Department at a disadvantage

in presenting its case and in assessing London’s credibility at the

pre-disciplinary interview. MCAPD also professed an interest in

protecting its preliminary information-gathering procedures,

relying, in part, on the fact that some of the complaining

witnesses were London’s probationers, persons over whom London

wielded the power to recommend revocation of probation. In

addition, MCAPD asserted a systemic interest in preventing

disclosure of investigations that have not been completed, in part

_________________________
Collins, 175 Ariz. 11, 14, 852 P.2d 1194, 1198 (1993).
- 9 -
to protect the reputation of Department employees if allegations

turn out to be frivolous or never result in disciplinary charges.

Finally, MCAPD expressed concern regarding potential threats to or

intimidation of complaining witnesses, probationers, or

professional colleagues.

¶13 In response, London failed to articulate any interest the

public might have in obtaining the investigatory file before the

pre-disciplinary interview. Instead, he asserted that he needed to

prepare his case, a personal interest, and that the investigatory

file is an employee record, in which he may waive his privacy

interests. See Rule 123(e)(1)(G).

¶14 London’s waiver argument might weigh more heavily in the

balance if his interests were the only privacy and confidentiality

interests at stake. MCAPD, however, has alleged that interests of

probationers who have complained about London’s behavior - persons

over whom London holds tremendous power - also deserve protection

from disclosure. Some informants may reveal matters to

investigators that they wish to have remain confidential, at least

until charges are substantiated. These legitimate interests weigh

in favor of nondisclosure at the investigative stage. Thus

London’s waiver of his privacy rights alone under Rule 123(e)(1)(G)

does not compel disclosure of the investigatory file.

¶15 Moreover, although court employees may authorize release

of information regarding their employment, Rule 123(e)(6)

- 10 -
contemplates release to the public at large, not to the employee

him- or herself in the context of civil litigation to help prepare

a personal case. The United States Supreme Court faced a similar

request for investigatory information in a case decided under the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (1976), the

federal open records law. See N.L.R.B. v. Robbins Tire & Rubber

Co., 437 U.S. 214, 98 S. Ct. 2311 (1978). In Robbins Tire, a

company charged with an unfair labor practice sought disclosure of

statements of witnesses the NLRB intended to call at a hearing.

Id. at 216, 98 S. Ct. at 2314. The Court was asked to decide

whether such disclosure would “interfere with enforcement

proceedings,” as that phrase is used in FOIA. Id. In weighing the

NLRB’s interest in maintaining the confidentiality of the file, the

Court considered Congress’s intent in drafting the FOIA exemption

to “prevent ‘harm [to] the Government’s case in court.’” Id. at

224, 98 S. Ct. at 2318 (quoting S. Rep. No. 813, 89th Cong., 1st

Sess. (1965)). The Court concluded that the exception did not

require disclosure of “statements of agency witnesses” before they

testified at agency proceedings, id. at 225, 98 S. Ct. at 2318,

noting that such disclosure “while a case is pending” is “precisely

the kind of interference with enforcement proceedings” the FOIA

exemption was designed to avoid. Id. at 236, 239, 98 St. Ct. at

2324-25.

¶16 This case of course differs from Robbins Tire in that,

- 11 -
unlike FOIA, Rule 123 does not contain a specific “interference

with enforcement proceedings” exception. Nonetheless, we find

persuasive the Court’s reasoning that the public records law was

not intended to serve as a private discovery tool. Id. at 242, 98

S. Ct. at 2327; cf. Salt River Pima-Maricopa Indian Cmty. v.

Rogers, 168 Ariz. 531, 540-41, 815 P.2d 900, 909-10 (1991) (stating

Arizona courts will look to FOIA for guidance in interpreting

Arizona’s public records act). We conclude that the privacy,

confidentiality, and governmental interests articulated by MCAPD

are deserving of protection and are encompassed within section

(c)(1) of Rule 123, which, like its public records counterparts,

shields such interests from disclosure.

¶17 Rule 123 was not designed as a supplemental discovery

tool authorizing release of information to the employee for use in

litigation. It was conceived as a mechanism for making court

records available to the public. In this case, London acknowledged

that he sought the investigatory file solely as discovery in the

pending disciplinary proceedings. Indeed, at oral argument he

conceded that he could think of no interest the public might have

in disclosure of the preliminary investigation of a low-level

probation department employee at the initial stage of the

investigation. Given this concession, the scales weigh heavily in

favor of MCAPD, which articulated several legitimate reasons for

protecting the file from public scrutiny before charges were

- 12 -
brought. We therefore conclude, much as the Supreme Court did in

Robbins Tire, that no public records purpose would be frustrated by

“deferring disclosure until after” the Department has brought its

charges. 437 U.S. at 242, 98 S. Ct. at 2327.

¶18 The court of appeals in this case found, and the parties

agree, that London made his request for the investigatory file as a

member of the public, and not in his capacity as a court employee.

London, 204 Ariz. at 276, ¶ 18, 63 P.3d at 307. In its ultimate

disposition, however, that court relied upon London’s personal

interests, citing his “compelling interest to review the

allegations against him prior to the pre-disciplinary hearing.”

Id. at 278, ¶ 27, 63 P.3d at 309. Because it found that “London’s

employment was in jeopardy,” the court concluded that London’s

personal interests outweighed MCAPD’s interest in confidentiality.

Id. In so reasoning, the court mistakenly weighed London’s

personal interests as an individual litigant, not the public’s

interest in disclosure of the preliminary investigative file.

London conceded there was no such interest to weigh in the balance

against the substantial interests articulated by MCAPD.

¶19 Indeed, even in this court London failed to articulate

any interest the public might have in the disclosure of the

investigatory file concerning mere allegations of misconduct

against a probation officer before the officer himself received the

file. In his Request for Review, London mentioned the public’s

- 13 -
interest in assuring that investigations are not flawed, but this

interest is satisfied by the disclosure after the discipline is

imposed.

¶20 Given the interests articulated by MCAPD and London, the

weighing process is simple. Although London did not need to

articulate a reason for disclosure, MCAPD’s articulation of valid

interests dissipated the presumption of disclosure. Thus, to

overcome MCAPD’s interest, London had to state a public interest in

the disclosure. Because he did not state any public interest,

there is weight only on MCAPD’s side of the scale. Consequently,

MCAPD’s interest outweighs the public interest. Judge Campbell’s

denial of London’s request was proper.

¶21 Although we have disposed of this case on the basis of

Rule 123(c)(1), we briefly address two other exceptions raised in

this case. MCAPD relied on Rule 123(e)(6) to preclude disclosure

of the investigatory file. This exception to disclosure applies

only to preliminary court documents preceding studies, opinions,

rules, or other court publications that eventually will be released

to the public. As the court of appeals correctly noted, “[t]he

purpose of this provision is to ‘confirm[] the right of court

employees as public officials to uninhibitedly explore policy

issues, without fear that their internal deliberations will be

exposed to the public before deliberations are finalized.’”

London, 204 Ariz. at 277, ¶ 22, 63 P.3d at 308 (citing In re Rule

- 14 -
for Public Access to the Records of the Judicial Department,

(Petition to Adopt), R-97-0019 § 5.6 (Ariz. June 20, 1997)

(discussing proposals of the Public Access to Court Records

Committee)). Disciplinary investigations are very different

government actions from policy-making decisions. Rule 123(e)(6)

was meant to apply only to the latter. Rule 123(e)(6) therefore

neither exempts from disclosure nor allows disclosure of the

investigatory file at issue here.

¶22 MCAPD also asserted that the file was not subject to

disclosure under Rule 123(f)(4)(A)(ii) and (iii) because the

request would “substantially interfere” with “constitutionally or

statutorily mandated functions of the court” or the “routine

operations of the court.” Those exceptions generally address the

burdens imposed on staff in fulfilling requests, as opposed to

burdens imposed by the nature of the subject matter of the

documents. See id. In this case, MCAPD denied the request because

of the content of the requested documents, not because producing

the file would be unduly burdensome. Thus Rule 123(f)(4)(A) is

also inapplicable to London’s request.

C. Attorneys’ Fees

¶23 London has requested that we award him attorneys’ fees

incurred in this case. Because London did not prevail in this

action, we do not address his request.

- 15 -
 CONCLUSION

¶24 We conclude that MCAPD’s preliminary investigatory file

pertaining to London was exempt from production by Rule 123(c)(1).

We therefore affirm Judge Campbell’s decision and vacate the

decision of the court of appeals.

________________________________________
Rebecca White Berch, Justice

CONCURRING:

_________________________________________
Charles E. Jones, Chief Justice

_________________________________________
Ruth V. McGregor, Vice Chief Justice

_________________________________________
Michael D. Ryan, Justice

_________________________________________
Andrew D. Hurwitz, Justice

- 16 -