Silverman v. Ahcccs

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

AMY SILVERMAN, et al.,
Plaintiffs/Appellants,

v.

ARIZONA HEALTH CARE COST CONTAINMENT SYSTEM,
Defendant/Appellee.

No. 1 CA-CV 21-0720
FILED 6-22-2023

Appeal from the Superior Court in Maricopa County
No. LC2021-000183-001
The Honorable Sara J. Agne, Judge

REVERSED AND REMANDED

COUNSEL

First Amendment Clinic Public Interest Law Firm, Phoenix
By Gregg P. Leslie, Jacob M. Karr, Zachary R. Cormier, Jack Prew-Estes*,
Jake Nelson*, Maria McCabe*, Vanessa Stockwill*
Counsel for Plaintiffs/Appellants

Johnston Law Offices PLC, Phoenix
By Logan T. Johnston, III
Counsel for Defendant/Appellee

* Certified limited practice students. See Ariz. R. Sup. Ct. 39(c).
 SILVERMAN, et al. v. AHCCCS
Opinion of the Court

OPINION

Chief Judge Kent E. Cattani delivered the opinion of the Court, in which
Acting Presiding Judge Cynthia J. Bailey and Vice Chief Judge David B.
Gass joined.

C A T T A N I, Chief Judge:

¶1 This public records case presents a narrow issue of potentially
broad import. Arizona law does not require a public entity to create any
new record in response to a public records request. But does using
encryption to redact non-disclosable information stored in an electronic
database necessarily constitute creation of a new record? We hold that it
does not.

¶2 This concept is particularly important in a case like this one,
in which the public entity uses non-disclosable data as a critical part of its
database structure (as the relational keys linking different tables). Thus,
requiring the agency to use a one-way cryptographic hash function to
redact the non-disclosable data—substituting a unique hashed value that
masks protected information without destroying its function in the
database—is necessary to ensure a requestor receives, to the extent possible,
a copy of the real record. And because such encryption only hides a limited
aspect of the record—without adding to, aggregating, analyzing, or
changing any of the underlying information—it does not create anything
new and does not result in the creation of a new record. Accordingly, and
for reasons that follow, we reverse the superior court’s dismissal of the
journalists’ public records lawsuit at issue here and remand for further
proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

¶3 The Arizona Health Care Cost Containment System
(“AHCCCS”) oversees the Arizona Long-Term Care System (“ALTCS”).
Appellants Amy Silverman, Alex Devoid, and TNI Partners (d/b/a
Arizona Daily Star) are journalists researching issues related to services for
Arizonans with developmental disabilities, including those services
provided by ALTCS. Appellants are seeking public records from AHCCCS
to learn what factors affect eligibility decisions during the ALTCS
application and screening process.

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Opinion of the Court

¶4 In February 2020, Appellants submitted a public records
request for data in AHCCCS’s databases for multiple categories of
information provided in or related to ALTCS applications. Appellants
acknowledged that healthcare-related information would have to be de-
identified to comply with privacy rules under the Health Insurance
Portability and Accountability Act (“HIPAA”). See, e.g., 45 C.F.R.
§§ 164.502(d), .514(a)–(c). Noting that the requested data might be
contained in multiple tables, Appellants requested that, for de-identified
data, AHCCCS “include a unique identifier, such as a hash key, to replace”
information necessary to distinguish different individuals’ records.
Appellants’ request expressly did not ask AHCCCS to “join tables together
. . . or to conduct any type of analysis on the data,” provided any existing
relational keys remained intact.

¶5 The parties negotiated for over a year. Appellants narrowed
their request, and AHCCCS agreed that substantial portions of the
requested data could be provided. As relevant here, however, the agency
asserted that HIPAA required redaction of each applicant’s unique
“AHCCCS ID,” and because the databases used that unique identifier as a
relational key connecting various tables across the databases, its removal
would leave other elements of the requested data unlinked. Appellants
asked that AHCCCS substitute a hashed value to hide the protected
information while retaining the links, see 45 C.F.R. § 164.514(c), (b)(i)(R), but
AHCCCS asserted that doing so would be creating a new record.

¶6 Given this impasse, Appellants filed a statutory special action
to compel production of the requested public records with the substituted
hashed values, see A.R.S. § 39-121.02(A), arguing that substituting a hashed
value did not create a new record but rather operated as “an advanced, yet
simply implemented, form of redacting identifying information.”
AHCCCS moved to dismiss for failure to state a claim, asserting that
Appellants’ request would require creation of new records—requiring
AHCCCS “not only [to] search its databases but link its many tables and
fields of data in ways they are not now linked.” AHCCCS further asserted
that fulfilling the request would be unduly burdensome and expressed
concern that linking information across data fields would impermissibly
risk re-identification of individual applicants.

¶7 Reasoning that “[r]eplacing redacted identifying numbers
with new numbers, which the agency itself would have to select, is the
creation of new records,” the superior court granted the motion and
dismissed the complaint. The court did not reach AHCCCS’s undue
burden and risk of re-identification arguments.

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Opinion of the Court

¶8 Appellants timely appealed, and we have jurisdiction under
A.R.S. § 12-2101(A)(1).

DISCUSSION

¶9 We review de novo the superior court’s dismissal of a
complaint for failure to state a claim. See Ariz. R. Civ. P. 12(b)(6); Coleman
v. City of Mesa, 230 Ariz. 352, 355–56, ¶¶ 7–8 (2012). Dismissal on this basis
is appropriate only if the plaintiff “would not be entitled to relief under any
interpretation of the facts susceptible of proof.” Coleman, 230 Ariz. at 356,
¶ 8 (citation omitted); Elm Ret. Ctr., LP v. Callaway, 226 Ariz. 287, 289, ¶ 5
(App. 2010). We assume the truth of all well-pleaded factual allegations
and all reasonable inferences therefrom, although “mere conclusory
statements” do not suffice. Coleman, 230 Ariz. at 356, ¶ 9; see also Jeter v.
Mayo Clinic Ariz., 211 Ariz. 386, 389, ¶ 4 (App. 2005).

¶10 Under Arizona law, “[p]ublic 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. This statutory mandate reflects
Arizona’s strong presumption in favor of open government and disclosure
of public documents. See Griffis v. Pinal County, 215 Ariz. 1, 4, ¶ 8 (2007).
Public policy favors subjecting agency action “to the light of public
scrutiny” and ensuring that citizens are “informed about what their
government is up to.” Scottsdale Unified Sch. Dist. No. 48 v. KPNX Broad. Co.,
191 Ariz. 297, 302–03, ¶ 21 (1998) (citations omitted); see also id. at 300, ¶ 9
(noting that the public entity bears the burden to show a proper basis for
withholding requested documents).

¶11 A requestor is generally entitled to review a copy of the “real
record,” even one maintained in an electronic format, Lake v. City of Phoenix,
222 Ariz. 547, 551, ¶ 13 (2009) (citation omitted), subject to redactions
necessary to protect against risks to privacy, confidentiality, or the best
interests of the state, Carlson v. Pima County, 141 Ariz. 487, 490–91 (1984);
Judicial Watch, Inc. v. City of Phoenix, 228 Ariz. 393, 396, ¶ 12 (App. 2011).
Thus, upon request, a public entity must search its electronic databases to
identify and produce responsive records. ACLU of Ariz. v. Ariz. Dep’t of
Child Safety, 240 Ariz. 142, 144–45, 148–49, ¶¶ 1, 15, 17–18 (App. 2016). But
the entity need not tally, compile, analyze, or otherwise provide
information about the information contained in existing public records,
which would in effect create a new record in response to the request. Id. at
145, 148–49, ¶¶ 1, 17–18. Nor is the entity required to compile the data in a
form more useful to a requestor. Id. at 148–49, ¶¶ 17–18.

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Opinion of the Court

¶12 Here, Appellants proposed that AHCCCS could redact
protected information that also served a functional purpose in the database
structure by using a one-way cryptographic hash function, which would
substitute a unique hashed value to mask the protected information
without destroying its function. At AHCCCS’s urging, the superior court
held that “[r]eplacing redacted identifying numbers with new numbers,
which the agency itself would have to select,” would necessarily constitute
creation of a new record. We disagree.

¶13 Using a one-way cryptographic hash function to substitute a
unique hashed value for protected information does not add to or change
any of the underlying information (much less aggregate or analyze the
data); it just hides a limited aspect of it. Redaction-by-encryption does not
create anything new, but rather represents a better-tailored redaction
process that eliminates only information that is in fact protected. Cf. ACLU
Immigrants’ Rights Project v. U.S. Immigr. & Customs Enf’t, 58 F.4th 643, 655
(2d Cir. 2023). Accordingly, we reverse the superior court’s ruling granting
AHCCCS’s motion to dismiss.

¶14 We acknowledge that redaction-by-encryption is different
than traditional redaction-by-deletion (or redaction-by-obscuring-text-
behind-a-black-box), and it may only be feasible in the context of
electronically stored records. But when public records are stored in that
format, differences occasioned by newer forms of data storage may call for
differences in how the data is disclosed. For example, embedded metadata
is an inherent part of a public record maintained in an electronic format,
even though such metadata was nonexistent and effectively meaningless
for the same record stored on paper. See Lake, 222 Ariz. at 550–51, ¶¶ 13–
15. Accordingly, applying redaction-by-encryption as a more tailored form
of redaction (even if made possible only by electronic storage) serves to
ensure that the requestor receives access to the “real record” to the greatest
extent possible. See id. at 551, ¶ 13 (citation omitted); Carlson, 141 Ariz. at
490–91.

¶15 The most analogous authority construing the federal
Freedom of Information Act (“FOIA”) bears this out.1 In ACLU Immigrants’
Rights Project v. U.S. Immigration & Customs Enforcement, the government
refused the ACLU’s request to replace “A-Numbers”—a unique number
assigned to each individual non-citizen immigrating to the United States, a

1 Although Arizona’s public records law is broader than the federal
statute, Arizona courts look to FOIA for guidance. Lunney v. State, 244 Ariz.
170, 177, ¶ 21 n.8 (App. 2017).

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Opinion of the Court

number that is exempt from disclosure under FOIA—with an anonymized
“Unique ID” that would permit the ACLU to track data related to
individual (but unidentified) non-citizens across ICE’s databases. 58 F.4th
643, 646 (2d Cir. 2023). The district court granted summary judgment for
ICE on the basis that ACLU’s requested substitutions required creation of
new records. Id. at 646–47.

¶16 The Second Circuit reversed. Id. at 647. Although ICE
maintained event-centric (rather than person-centric) databases, it also
“chose[]—although it was not required—to have FOIA-exempt A-Numbers
function as the sole ‘key’ or ‘code’ affording access to electronic data
pertaining to individual [non-citizens] from its event-centric databases,”
and “ICE itself use[d] A-Numbers for that purpose.” Id. at 647.
“[D]istinguish[ing] between the content of an electronic record and the
function it may have been assigned within a computer system,” the court
reasoned that although the A-Numbers themselves were properly redacted,
the function they served was not. Id. at 656. ACLU’s proposed substitution
of Unique IDs—“numbers meaningless in themselves but able to perform
the same access function as A-Numbers”—neither “alter[ed] the content of
any exempt record” nor “document[ed] any new information” nor
“otherwise create[d] any new records.” Id. at 655–56. “Rather, Unique IDs
serve[d] only . . . to preserve a function necessary to afford the public the
same person-centric access to non-exempt records that ICE already has.”
Id. at 656.

¶17 Here, at least as alleged by Appellants, see Coleman, 230 Ariz.
at 356, ¶ 9, AHCCCS uses protected information (presumably an
individual’s AHCCCS ID) as a relational key in AHCCCS’s databases.
Compare ACLU Immigrants’ Rights Project, 58 F.4th at 646–47. Although the
information itself is protected against disclosure, its functionality in the
databases is not. Compare id. at 656. Using redaction-by-encryption to
replace the protected information with an otherwise-meaningless hashed
value does not add or change any information, it simply masks the
protected information without forfeiting the access function AHCCCS has
chosen to have it perform. Compare id. at 655–56.

¶18 We note that redaction-by-encryption does not entitle
Appellants to anything more than the public record as it actually exists.
Appellants’ complaint alleged that AHCCCS uses protected information
(which must be de-identified before production to comply with HIPAA
requirements) as the relational keys providing existing links between
tables. AHCCCS’s contrary assertion that it cannot link the data appears to
presuppose that the existing unique identifier used as a relational key

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Opinion of the Court

would be blacked-out—that is, after redaction, the link would no longer
exist. At this stage of proceedings and in light of Appellants’ allegations,
AHCCCS’s position is essentially an assertion that it need not relink the
data after breaking those links in the first instance. Appellants’ request asks
that AHCCCS not simply black-out the private information, but rather
encrypt it so that the confidential aspect is hidden but the functional link
remains intact.

¶19 Although Appellants’ complaint could also be read to
encompass a request for creation of new links, Appellants unequivocally
conceded at oral argument before both the superior court and this court that
they are seeking only preservation of existing links among the data, not
creation of new links. Cf. Clark Equip. Co. v. Ariz. Prop. & Cas. Ins. Guar.
Fund, 189 Ariz. 433, 439 (App. 1997) (a party’s express, in-court concession
“has the effect of a confessory pleading”) (citation omitted).

¶20 Accordingly, to the extent the tables and fields in the existing
databases (pre-redaction) are not in fact linked—and the record is not clear
on that issue—AHCCCS is not required to create new links to serve
Appellants’ purposes. See ACLU of Ariz., 240 Ariz. at 148, ¶ 17. But to the
extent the links exist pre-redaction, all Appellants’ complaint seeks, and
what they are potentially entitled to, is preservation of those links that form
part of the “real record.” See Lake, 222 Ariz. at 551, ¶ 13 (citation omitted).

¶21 AHCCCS highlights several cases under FOIA and other
states’ public records law that it asserts support its position that redaction-
by-encryption would constitute creation of a new record. But those cases
arose in a meaningfully different procedural posture (involving
consideration of a factual record) and involved analysis or manipulation of
records far beyond the comparatively simple encryption proposed here.

¶22 For example, the court in Center for Public Integrity v. F.C.C.
reasoned that requiring an entity to “replace [] redacted numbers with new
numbers, which the [entity] itself would have to select” (rather than simply
redacting a portion of each number) would require creation of a new record.
505 F. Supp. 2d 106, 114 (D.D.C. 2007). But the requestor’s proposal there
would have required the entity to divide numerical responses into ranges
rather than disclose the numbers themselves. Id. That is, the proposal
would have required the entity to analyze the numbers and provide the
plaintiff information about the information contained in its records in the
form of “modified data”—and that analytical step meant the proposal
required the creation of a new record. Id.; see also ACLU of Ariz., 240 Ariz.
at 148–49, ¶¶ 17–18.

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Opinion of the Court

¶23 Likewise, the court in Students Against Genocide v. Department
of State denied plaintiffs access to certain records because, although a public
entity is required to provide “‘any reasonably segregable,’ non-exempt
portion of an existing record” under FOIA, it need not create new
documents. 257 F.3d 828, 837 (D.C. Cir. 2001) (quoting 5 U.S.C. § 552(b)).
But unlike the instant case, that case involved a request for a new and
different version of a public record. The plaintiffs there sought disclosure
of spy satellite photos that were shown (but not distributed) by the United
States Secretary of State during a closed-door session of the United Nations
Security Council. Id. at 830. The plaintiffs argued that, even assuming
disclosure of the photographs would compromise national security
interests, the federal government should nevertheless be required to
“produce new photographs at a different resolution” to mask the technical
capabilities of the reconnaissance systems that took the photos. Id. at 837.
Addressing the district court’s grant of a motion for summary judgment in
favor of the United States, the D.C. Circuit agreed with the government’s
position that the request was not for a limited redaction of private
information within an existing record, but rather required modification of
the record in its entirety to create a new image—to literally create a new
record. Id. at 837–38.

¶24 The court in Long v. Immigration & Customs Enforcement
reasoned that an entity need not create new links among existing data if the
links did not originally exist. See No. 17-cv-1097 (APM), 2021 WL 3931879,
at *4–5 (D.D.C. Sept. 2, 2021) (mem. op.). But as described above, see supra
¶¶ 18–20, when read in conjunction with Appellants’ concessions, the
instant complaint seeks only preservation of existing links, not the creation
of new ones. Moreover, in Long, satisfying the request would have required
complex supplemental data analysis “to manufacture complex and often
imprecise connections between otherwise facially unrelated data” in a
database. Id. Unlike the encryption requested here, this additional layer of
data analysis, as well as the literal creation of new links, was what
constituted the creation of a new record in Long. Id. at *5.

¶25 Finally, the court in Sander v. State Bar of California confirmed
that an entity is not required to “recode its original data into new values”
in order to de-identify personal identifying information. 237 Cal. Rptr. 3d
276, 289 (Cal. Ct. App. 2018). But that case addressed proposed methods
for anonymizing data that were far more involved than the one-way
encryption proposed here. Id. at 282–85. Each proposed method would
have required the entity to “recode its original data into new values” by
creating new groupings not contemplated in the existing database: e.g.,
grouping law schools into three classes, reorganizing race and ethnicity

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Opinion of the Court

data into four instead of eight categories, and grouping “bands” of
graduation years. Id. at 284, 289–90. Certain proposed anonymization
methods would have required the entity to excise substantial portions of
the database, then perform statistical computations on the remainder (after
recoding the data) to generate new information. Id. at 284, 290. These
proposed methods would have required the entity to literally “chang[e] the
substantive content of an existing record or replac[e] existing data with new
data.” Id. at 291. It was the data manipulation and analysis to yield new
records that provided information about the original data—and not the fact
that the processes were intended to anonymize data while preserving
existing links—that constituted creation of a new record. See also ACLU of
Ariz., 240 Ariz. at 148–49, ¶¶ 17–18.

¶26 The critical substantive distinction here is the absence of any
request that AHCCCS analyze, compile, or otherwise manipulate its
existing data to create a new record. See id. Masking private data through
redaction-by-encryption in a way that hides the confidential information
but retains any existing links between tables (to the extent they currently
exist in AHCCCS’s databases, see supra ¶¶ 18–20) is not creating anything
new; it is just declining to obscure anything more than required.

¶27 Notably, none of these cases was decided on a motion to
dismiss. Center for Public Integrity, Students Against Genocide, Long, and even
ACLU Immigrants’ Rights Project were decided on summary judgment,
meaning the court could consider the facts surrounding the requestors’
proposals. Ctr. for Pub. Integrity, 505 F. Supp. 2d at 108; Students Against
Genocide, 257 F.3d at 830; Long, 2021 WL 3931879, at *1; ACLU Immigrants’
Rights Project, 58 F.4th at 646–47. Sander was appealed after a five-day bench
trial (largely focused on competing expert testimony about de-
identification methods), which meant the trial court had a meaningful
factual basis to assess the complications involved in de-identifying data. See
237 Cal. Rptr. 3d at 280–81. In contrast, the procedural posture here—
AHCCCS’s motion to dismiss—means that only basic principles relating to
disclosure are in play. In this context, a court does not consider (and here,
did not have) evidence bearing on potential factual issues such as whether
Appellants’ proposal would be unduly burdensome or would be
insufficient to de-identify the data to the degree required by HIPAA (which
AHCCCS asserts as alternative grounds to affirm). See Coleman, 230 Ariz.
at 356, ¶¶ 8–9.

¶28 To be sure, the journalists’ request may ultimately prove
unduly burdensome given the scale of data involved, and redaction (by
encryption and otherwise) may ultimately prove insufficient to adequately

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Opinion of the Court

anonymize the data given the type of data requested. But those questions
require evidentiary development and must be considered on their facts, not
as questions of law. Accordingly, and given the standard required for
dismissal prior to any evidentiary consideration, the superior court erred
by concluding that Appellants’ request necessarily involved creation of
new records and by dismissing the complaint on that basis.

CONCLUSION

¶29 We reverse the dismissal and remand for further proceedings.

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

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