Silverman v. Ades

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

AMY SILVERMAN, et al., Plaintiffs/Appellees,

v.

ARIZONA DEPARTMENT OF ECONOMIC SECURITY,
Defendant/Appellant.

No. 1 CA-CV 22-0209
FILED 6-13-2023

Appeal from the Superior Court in Maricopa County
No. LC2021-000182-001
The Honorable Sally Schneider Duncan, Judge, Retired

AFFIRMED IN PART; VACATED IN PART; AND REMANDED

COUNSEL

First Amendment Clinic
Public Interest Law Firm, Phoenix
By Gregg Leslie, Jacob Karr, Zachary Cormier, Adam M. Jackson (argued)
Counsel for Plaintiffs/Appellees

Richards & Moskowitz PLC, Phoenix
By William A. Richards (argued), Karen J. Moskowitz,
Natalya Ter-Grigoryan
Counsel for Defendant/Appellant
 SILVERMAN, et al. v. ADES
Opinion of the Court

OPINION

Presiding Judge Brian Y. Furuya delivered the opinion of the Court, in
which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.

F U R U Y A, Judge:

¶1 The Arizona Department of Economic Security (“DES”)
appeals the superior court’s order denying its motion to dismiss the
complaint filed by Amy Silverman and TNI Partners (“Appellees”) and
entering judgment for Appellees. The order requires DES to disclose
statutorily confidential records about vulnerable and disabled adults,
finding Silverman, as a journalist, qualifies for the “bona fide research”
exception to the records’ confidentiality.

¶2 As explained below, we hold the record is not sufficiently
developed to determine whether the journalistic activities at issue in this
case constitute “bona fide research” and qualify for the statutory exception
to confidentiality of records under Arizona Revised Statutes (“A.R.S.”) § 46-
460(D)(8). Further, even if Silverman’s journalistic activities can qualify,
A.R.S. § 46-460 vests discretion with DES to determine whether the
disclosure of otherwise confidential records falls within the statutory
exception. Because the record does not resolve whether DES acted
arbitrarily or capriciously in exercising its discretion under the statute to
deny Silverman’s request, we hold the court also erred in granting
judgment for Appellees. Thus, although affirming the order denying DES’
motion to dismiss, we vacate the judgment for Appellees, and remand for
further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶3 Vulnerable adults are those unable to protect themselves from
“abuse, neglect or exploitation by others because of a physical or mental
impairment.” A.R.S. § 46-451(A)(12). DES is statutorily authorized to
investigate reports of abuse of vulnerable adults through Adult Protective
Services (“APS”). A.R.S. § 46-451(A)(2), (10). To conduct its investigations,
APS gathers relevant documents and creates reports documenting its
progress. Because of the sensitive nature of these records, by statute, the
legislature designated them confidential, generally preventing their
disclosure. A.R.S. § 46-460(A). But the statute also contains a list of

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exceptions permitting DES to disclose the records in certain enumerated
circumstances, such as for “bona fide research.” See A.R.S. § 46-460(D)(8).

¶4 Silverman is a freelance investigative journalist who works
for the Arizona Daily Star, a newspaper owned by TNI Partners. She is
researching how Arizona treats its citizens with developmental disabilities
for a contemplated article. In May 2020, Silverman submitted a records
request to DES seeking the production, in closed cases, of “[APS] reports,
investigations and other materials that provided the data for APS quarterly
reports from April 2019 to March 2020.” Silverman did not explain the
reason for her request, disclose any research methodology she intended to
follow, explain how the records would aid her work, or delineate her plan
to protect sensitive information from further disclosure other than that she
would permit DES to redact “names and addresses.”

¶5 DES denied Silverman’s request, explaining it believed the
records were confidential and statutorily protected from disclosure.
Silverman renewed her request—adding a demand for all “incident reports
received by the [Department of Developmental Disabilities]” in 2019—and
asserted she planned to research how the State protects vulnerable citizens.
DES also denied Silverman’s renewed request.

¶6 Appellees then filed this case, asking the superior court to
compel production of the records under A.R.S. § 46-460(D)(8)’s bona fide
research exception. They alleged the records would help Silverman write
news articles to “inform the public on the effectiveness of [DES’] services to
citizens with disabilities.” DES moved to dismiss pursuant to Arizona Rule
of Civil Procedure 12(b)(6) for failure to state a claim, arguing Appellees’
commercial journalistic endeavors did not qualify under the “bona fide
research” exception. The court held oral argument and later denied DES’
motion to dismiss. The same order sua sponte compelled DES to disclose
the records. The parties, however, had not yet conducted discovery and did
not request conversion of the motion to dismiss to a motion for summary
judgment. Nor did the court provide any notice to the parties that it
intended to resolve the motion to dismiss in this way.

¶7 Following entry of a final judgment reflecting this relief, DES
timely appealed, and we have jurisdiction pursuant to Article 6, Section 9
of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

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DISCUSSION

I. Standard of Review

¶8 Typically, the “denial of a motion to dismiss is not a final
judgment; we may review such orders only by special action and only in
unusual circumstances.” State ex rel. Dep’t of Econ. Sec. v. Powers, 184 Ariz.
235, 236 (App. 1995). But here, the superior court denied DES’ motion to
dismiss and, sua sponte, granted the relief requested by Appellees. This
result effectively converted DES’ motion to dismiss into a summary
judgment and granted judgment in Appellees’ favor. Accordingly, this
court has appellate jurisdiction under A.R.S. § 12-2101(A)(1).

¶9 The court entered judgment without giving the parties notice
of its intent to convert DES’ motion to dismiss into a motion for summary
judgment and without giving the parties a chance to present relevant
material. Appellees contend DES waived any objection to doing so because
DES did not oppose conversion in its briefing. But DES objected to the
judgment at oral argument. Appellees have shown no waiver here.

¶10 We will therefore review the validity of the judgment de
novo, “viewing the evidence and reasonable inferences in the light most
favorable to the party opposing the motion,” Andrews v. Blake, 205 Ariz. 236,
240 ¶ 12 (2003), to determine “whether any genuine issues of material fact
exist,” Brookover v. Roberts Enters., Inc., 215 Ariz. 52, 55 ¶ 8 (App. 2007).

¶11 We also review the superior court’s interpretation of statutes
de novo. Pima Cnty. v. Pima Cnty. L. Enf’t Merit Sys. Council, 211 Ariz. 224,
227 ¶ 13 (2005).

II. The Record is Insufficient to Determine Whether Silverman’s
Journalistic Activities Qualify as “Bona Fide Research” Under
A.R.S. § 46-460(D)(8).

A. “Research” Must Have an Educational, Administrative, or
Scientific Purpose.

¶12 Citizens generally have a statutory right to access public
records. A.R.S. §§ 39-121 to -128. That broad right, however, is not without
limitation. See Carlson v. Pima Cnty., 141 Ariz. 487, 490 (1984). As relevant
here, the legislature provided that records held by DES related to
vulnerable adults are confidential and not subject to disclosure unless at
least one statutory exception applies. A.R.S. § 46-460. One such statutory
exception is that DES may disclose confidential records about vulnerable

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adults to a researcher “engaged in bona fide research, if no personally
identifying information is made available.” A.R.S. § 46-460(D)(8). Arizona
has no controlling authority on what qualifies as “bona fide research”
sufficient to allow disclosure of vulnerable adult records.

¶13 “Statutory interpretation requires us to determine the
meaning of the words the legislature chose to use. We do so neither
narrowly nor liberally, but rather according to the plain meaning of the
words in their broader statutory context, unless the legislature directs us to
do otherwise.” S. Ariz. Home Builders Ass’n v. Town of Marana, 522 P.3d 671,
676 ¶ 31 (Ariz. 2023). We look first to a statute’s plain language as the best
indicator of its purpose and effect, giving all words used in the statute their
ordinary meaning, interpreting different sections of a statute consistently,
and giving meaning, if possible, to every word and provision so that none
are made superfluous. See Secure Ventures, LLC v. Gerlach in & for Cnty. of
Maricopa, 249 Ariz. 97, 99 ¶ 5 (App. 2020) (citations omitted).

¶14 Here, apparently based on the allegations in the complaint
alone, the court ruled that Silverman’s journalistic activities were “bona fide
research,” thereby qualifying her for an exception to the confidentiality
prohibition against disclosure of DES records about vulnerable and
disabled adults. DES argues Silverman’s commercial journalistic activities
cannot constitute “bona fide research,” lest the exception be permitted to
swallow the entire rule.

¶15 Appellees contend “bona fide research” should be construed
broadly to apply to all who legitimately try to find answers to questions,
including journalists like Silverman who are pursuing leads for a story.
Indeed, some common definitions of “research” may be construed to
support this understanding. See In re Paul M., 198 Ariz. 122, 124 ¶ 7 (App.
2000) (holding we may refer to “established, widely respected
dictionar[ies]”) (citation omitted). For example, Merriam-Webster.com
defines “research” as, among others, “studious inquiry or examination,”
“the collecting of information about a particular subject,” “careful or
diligent search,” or “to search or investigate exhaustively.” Research,
Merriam-Webster.com, https://www.merriam-webster.com/dictionary/
research (last visited June 6, 2023). Other accepted definitions, however, are
at odds with Appellees’ reading. For example, Black’s Law Dictionary
defines “research” as including “[s]erious study of a subject with the
purpose of acquiring more knowledge, discovering new facts, or testing
new ideas” and “[t]he activity of finding information that one needs to
answer a question or solve a problem.” Research, Black’s Law Dictionary
(11th ed. 2019).

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¶16 Given the varying range of possible definitions, the meaning
of “research” is ambiguous and we must apply other rules of construction
to ascertain its meaning within A.R.S. § 46-460(D)(8). One such rule requires
that “each word or phrase of a statute must be given meaning so that no
part is rendered void, superfluous, contradictory or insignificant.” McCaw
v. Ariz. Snowbowl Resort, 254 Ariz. 221, 226 ¶ 16 (App. 2022), review denied
(May 2, 2023) (quoting Pinal Vista Props., L.L.C. v. Turnbull, 208 Ariz. 188,
190 ¶ 10 (App. 2004)).

¶17 Here, accepting Appellees’ proposed interpretation would
impose such minimal requirements as to render the confidentiality
protections in A.R.S. § 46-460(A) effectively meaningless. Under Appellees’
construction, any person seeking information could be said to be
conducting “research”—and therefore qualify for the exception—so long as
that person is not engaging in fraud or deception. See Bona Fide, Black’s Law
Dictionary (11th ed. 2019) (defining “bona fide” as, among other things,
excluding “fraud or deceit”); Bona Fide, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/bona%20fide (last visited
June 6, 2023) (defining “bona fide” as “neither specious nor counterfeit,”
“made with earnest intent,” and “made in good faith without fraud or
deceit”). Under such an expansive reading, the mere act of requesting
disclosure of the protected documents might itself qualify as engaging in
“bona fide research,” rendering the records confidential only until someone
asks for them. Such an interpretation is an absurd result, inconsistent with
the purpose of the confidentiality statute, which we must avoid. See Lake
Havasu City v. Mohave Cnty., 138 Ariz. 552, 557 (App. 1983) (“Statutes must
be given a sensible construction which will avoid absurd results.”).

¶18 The legislature’s choice of words in the subject statute makes
the records Appellees seek confidential; providing such ready and broad
access to them does not comply with the plain meaning of A.R.S. § 46-460.
Consequently, we must reject the court’s interpretation and adopt a
narrower construction. We instead construe the “bona fide research”
exception to further the statute’s purpose of preserving the records’
confidentiality. Secure Ventures, 249 Ariz. at 99 ¶ 5. Because the meaning of
“bona fide research” in the context of confidential records of vulnerable and
disabled adults is an issue of first impression in Arizona, we consider other
jurisdictions that have wrestled with the issue for guidance. See Branch v.
State, 15 Ariz. 99, 104 (1913) (“Where the wording of a statute is ambiguous
and uncertain . . . cases from other jurisdictions construing a like statute or
interpreting its words are persuasive and helpful.”).

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¶19 The New York1 case DES cites is instructive. In Newsday, Inc.
v. State Comm’n on Quality of Care for Mentally Disabled, 601 N.Y.S.2d 363, 365
(Sup. Ct. 1992), a New York trial court granted a motion to dismiss an action
to compel disclosure of confidential child abuse records and held journalists
were excluded from New York’s “bona fide research purpose” exception.
Compare N.Y. Soc. Serv. Law § 422(4)(A)(h) with A.R.S. § 46-460(D)(8). After
noting reports similar to those being sought by Appellees in this case were
“made confidential by other statutes,” the Newsday court found bona fide
research “should be construed as including academic, administrative or
scientific research” and that the statute’s purpose was “to restrict disclosure
to those conducting scientific or psychological research.” Newsday, 601
N.Y.S.2d at 364–65.

¶20 Because of the similarity between the statutes at issue, we find
the New York court’s approach in requiring an “academic, administrative
or scientific” purpose persuasive. Id. at 365. However, we are concerned the
limitation to “academic” purposes may be unduly restrictive. Some
definitions of the word “academic” could be used to withhold access from
those conducting research in vocational and commercial fields of study. See
e.g., Academic, Black’s Law Dictionary (11th ed. 2019) (“1. Of, relating to, or
involving a school or a field of study, esp[ecially] one that is neither
vocational nor commercial, such as the liberal arts.”). We see no reason to
exclude those conducting bona fide research in vocational or commercial
fields of study. Thus, unlike Newsday, we do not restrict potential
researchers to only “academic” research purposes. Instead, we use the
broader term “educational.” See Educational, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/educational (last visited
June 6, 2023) (defining “educational” as describing, among other things,
“the action or process of educating or of being educated”); Educating,
Merriam-Webster.com, https://www.merriam-webster.com/dictionary/
educating (last visited June 6, 2023) (defining “educating” as, among others,
“to provide schooling for” and “to train by formal instruction and
supervised practice especially in a skill, trade, or profession”). Therefore,
we hold that the “bona fide research” exception of A.R.S. § 46-460(D)(8) is

1 DES directs us to Seattle Times Co. v. Benton Cnty., 661 P.2d 964,
(Wash. 1983) as persuasive. However, the Seattle Times court construed a
statute substantially different in wording from A.R.S. § 46-460(D)(8), in that
it expressly limited access to confidential records to “legitimate research for
educational, scientific, or public purposes.” Wash. Rev. Code § 13.50.010(8)
(emphasis added). The specific limitations that qualify “legitimate
research” within this statute make the Seattle Times court’s analysis less
helpful when interpreting A.R.S. § 46-460.

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limited to “research” for educational, administrative, or scientific purposes.
And we further clarify that, provided their work otherwise qualifies as
research, journalists may qualify for the bona fide research exception under
A.R.S. § 46-460(D)(8).

¶21 Accordingly, the bona fide research exception permits
journalists to qualify for an exception to the ban on the disclosure of
confidential adult records if their research otherwise qualifies. For example,
a journalist’s request may be eligible for the exception if their research
serves a public purpose, such as informing the public of ways DES and APS
could improve treatment and security of vulnerable adults. Such goals
could be said to further educational or administrative purposes.

B. “Bona Fide” Requires Descriptions of the Records Needed,
the Purpose of the Research Project, and the Methodology
to Preserve Confidentiality.

¶22 The legislature’s inclusion of the phrase “bona fide” limits the
word “research,” and we must give that limitation meaning. McCaw, 254
Ariz. at 226 ¶ 16. In general, “bona fide” can mean “[m]ade in good faith;
without fraud or deceit” and “[s]incere; genuine.” Bona Fide, Black’s Law
Dictionary (11th ed. 2019). Thus, not every applicant that claims to be a
researcher may obtain access to DES’ confidential records about vulnerable
adults. Those making disclosure requests without sufficient support or
explanation that establishes their research is for educational,
administrative, or scientific purposes may not qualify as “bona fide.” See
Secure Ventures, 249 Ariz. at 99 ¶ 5. Whether an applicant qualifies as a
“bona fide” researcher is a fact question that will require DES and the court
to examine all relevant factors related to the research, including—without
limitation—its scope, objectives, and methodologies. But it stands to reason
that there must be some means of evaluating whether a request satisfies the
standard we articulate above.

¶23 Although we do not owe deference to an agency’s
interpretation of the law, we may find agency interpretations persuasive
and will consider DES’ historical interpretation of A.R.S. § 46-460(D)(8). See
A.R.S. § 12-910(F). DES requires applications for disclosure of its records to
meet several requirements. Researchers must have a detailed plan that
shows how the research will help DES improve its operations, show the
purpose and expected outcomes of the research, and show how they will
maintain record confidentiality. The bona fide research exception in A.R.S.
§ 46-460(D)(8) does not require the researcher’s research to benefit DES. But
we find it reasonable to require that researchers provide detailed

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descriptions outlining the specific information needed, the research’s
purpose and expected outcomes, and how they will maintain the
confidentiality of the records.

¶24 Thus, to qualify as “bona fide” under the exception,
prospective researchers must, at a minimum, provide detailed descriptions
that outline: the specific information sought and the project’s purpose,
expected outcomes, and the methodology the researcher will employ to
maintain the confidentiality of the records.

C. The Record on Appeal is Insufficient to Determine Whether
Silverman’s Request Qualifies as Bona Fide Research.

¶25 In the present case, the court entered judgment for Appellees
before the parties could conduct discovery or the court could take evidence.
We thus do not know the purpose of Silverman’s research project or her
expected outcomes, which documents relate to her goals, the scope of her
request, or her methodology to keep the information in the records
confidential. DES’ dismissal motion was inappropriate because Silverman’s
request may qualify for the bona fide research exception. But on this
underdeveloped record, we cannot tell. See Swift Transp. Co. of Ariz. L.L.C.
v. Ariz. Dep’t of Revenue, 249 Ariz. 382, 385 ¶ 16 (App. 2020) (explaining that
courts disfavor granting Ariz. R. Civ. P. 12(b)(6) motions). That said, we
hold the parties must conduct discovery and present sufficient evidence
before the court may enter judgment in either party’s favor on this issue.

¶26 For that reason, the court correctly denied DES’ motion to
dismiss. The court erred, however, by granting judgment to Appellees.

III. The Record is Insufficient to Evaluate DES’ Defenses to
Appellees’ Motion to Compel.

A. DES Has the Discretion to Determine Whether to Grant a
Request Under A.R.S. § 46-460(D).

¶27 We note another concern that may arise on remand. The
statute commends to DES the discretion to disclose its confidential records.
On review of a DES decision, the court should affirm it unless DES acted
arbitrarily or capriciously. Given the procedural posture of this case, we
decline to determine whether DES acted arbitrarily or capriciously in
denying the request.

¶28 As relevant here, A.R.S. § 46-460(A) makes the DES records at
issue confidential and not subject to disclosure, “except as provided in

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subsections B, C and D of this section.” In turn, A.R.S. § 46-460(D) provides
that DES employees “may release any information that is otherwise held
confidential under this section . . . .” (emphasis added).

¶29 The statute’s use of “may” as a modal verb “indicates
permissive intent and a grant of discretion.” Garcia v. Butler in & for Cnty. of
Pima, 251 Ariz. 191, 194 ¶ 13 (2021). Thus, by its terms, the statute confers
discretion upon DES in determining whether to disclose the records once
an exception has been established. Obviously, DES cannot exercise its
discretion arbitrarily or capriciously. See Maricopa Cnty. Sheriff’s Off. v.
Maricopa Cnty. Emp. Merit Sys. Comm’n, 211 Ariz. 219, 223 ¶ 17 (2005)
(citations omitted). In reviewing DES’ exercise of its discretion here, “we
review the record to determine whether there has been ‘unreasoning
action,’ without consideration and in disregard for facts and
circumstances.” Holcomb v. Ariz. Dep’t of Real Est., 247 Ariz. 439, 446 ¶ 26
(App. 2019) (quoting Maricopa Cnty. Sheriff’s Off., 211 Ariz. at 223 ¶ 17). A
hypothetical example of such “unreasoning action” could be if DES were to
deny a request for disclosure solely out of self-interest—as when a
researcher submits a plan to investigate alleged negligence or incompetence
by DES, and DES denies access to prevent embarrassing discovery and
disclosures that might substantiate such allegations. In such a situation,
denial based solely on self-interest would be arbitrary and capricious if the
research otherwise qualified as bona fide research.

B. The Record is Insufficient to Determine Whether DES
Acted Arbitrarily and Capriciously in Denying Silverman’s
Request.

¶30 Here, because of the summary disposition, we also do not
know whether DES has any potential defenses that may insulate its denial
from being arbitrary and capricious. DES claims, for example, that the
disclosure significantly burdens its resources because of the vast volume of
documents requested. This could serve as a defense to the motion to
compel, as A.R.S. § 46-460(D)(8) places the burden of redacting the records
on DES. See Hodai v. City of Tucson, 239 Ariz. 34, 43 ¶ 27 (App. 2016)
(explaining that an “unreasonable administrative burden” can justify the
denial of a public records request). But we cannot know whether this
burden is onerous enough to relieve DES from the disclosure order with no
factual findings on the amount of labor required to fulfill the request or
DES’ resources to meet that need.

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CONCLUSION

¶31 We affirm the portion of the court’s order denying DES’
motion to dismiss. We vacate the portion of the court’s order entering
judgment for Appellees. We remand to the superior court for further
proceedings consistent with this opinion.

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

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