Goldwater v. City of Phoenix

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

BARRY GOLDWATER INSTITUTE FOR PUBLIC POLICY
RESEARCH CENTER,
Plaintiff/Appellant,

v.

CITY OF PHOENIX, et al., Defendants/Appellees.

No. 1 CA-CV 24-0176
FILED 01-31-2025

Appeal from the Superior Court in Maricopa County
No. CV2023-003250
The Honorable Danielle J. Viola, Judge

REMANDED

COUNSEL

Goldwater Institute, Phoenix
By Jonathan Riches, Scott Day Freeman, Parker Jackson
Counsel for Plaintiff/Appellant

Pierce Coleman, PLLC, Scottsdale
By Stephen B. Coleman, Jon M. Paladini
Counsel for Defendants/Appellees

American Civil Liberties Union Foundation of Arizona, Phoenix
By Jared G. Keenan, Lauren K. Beall
Co-Counsel for Amicus Curiae Poder in Action & American Civil Liberties
Union Foundation of Arizona

GOLDWATER v. PHOENIX, et al.
Opinion of the Court

Arizona State University Sandra Day O’Connor College of Law, Phoenix
By Gregg P. Leslie, Aaron A. Baumann, Aaron Savoy (Rule 39 student)
Co-Counsel of Amicus Curiae Poder in Action & American Civil Liberties Union
Foundation of Arizona

OPINION

Judge Samuel A. Thumma delivered the opinion of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Andrew M. Jacobs joined.

T H U M M A, Judge:

¶1 Appellant Barry Goldwater Institute for Public Policy
Research (Goldwater) challenges an order denying its statutory special
action complaint seeking to compel the City of Phoenix and certain City
officials (collectively, the City) to disclose public records related to then-
pending labor negotiations. For the reasons set forth below, this matter is
remanded to allow the City to provide to the superior court both
unredacted and redacted versions of responsive documents for an in
camera review to determine what portions of those documents, if any, may
be withheld under the best interests of the state exception to the
requirement that public records be disclosed.

FACTS AND PROCEDURAL HISTORY

¶2 In a series of lengthy, complicated arrangements, each called
a Memorandum of Understanding (MOU), the City and groups of City
employees called Units agree to terms of employment. These MOUs are the
product of a complicated, multi-step meet and confer bargaining process
undertaken from time to time. The Phoenix City Code, including a meet
and confer Ordinance, guides that bargaining process. Among other things,
the Ordinance includes a prohibition period, where bargaining groups
cannot discuss matters being negotiated with City Council members. A
proposed MOU resulting from this meet and confer process is made
available for public comment before being considered for approval by the
City Council. MOUs apparently build on prior approved MOUs, with many
identical terms but also new or different terms.

2

GOLDWATER v. PHOENIX, et al.
Opinion of the Court

¶3 The City negotiates separately and simultaneously with these
Units in this meet and confer process. The specific Unit at issue here is
“Police officers—Below the rank of Sergeant,” represented by the Phoenix
Law Enforcement Association (PLEA).

¶4 The substantive provisions of these City-PLEA MOUs have
resulted in significant litigation. See Gilmore v. Gallego, ___ Ariz. ___, ___,
552 P.3d 1084 (2024); Cheatham v. DiCiccio, 240 Ariz. 315 (2016); see also PLEA
v. City of Phx., No. 1 CA-CV 23-0454 (Ariz. App. Aug. 27, 2024) (mem.
decision). Those substantive provisions are not at issue here. Instead, this
dispute is whether the City had to disclose to Goldwater draft MOU
proposals exchanged between the City and PLEA during the meet and
confer process leading up to the City-PLEA MOU effective July 1, 2023
through June 2024 (the 2024 MOU).

¶5 On December 1, 2022, PLEA gave the City written notice it
wanted to negotiate wage and benefit issues leading up to what became the
2024 MOU. Although the City Code required PLEA to provide a proposed
MOU along with that notice, City Code § 2-218(B), PLEA failed to do so. On
January 3, 2023, the City wrote PLEA that its December 1, 2022 notice did
not comply with the City Code but that the City looked forward to working
with PLEA in negotiating the 2024 MOU.

¶6 Apparently having learned of PLEA’s December 1 notice, on
December 19, 2022, Goldwater sent a public records request to the City
seeking three categories of documents: (1) all drafts of a proposed 2024
MOU with PLEA; (2) all MOU proposals being negotiated or to be
negotiated with PLEA under City Code § 2-218 and (3) “[a]ny
communications to or from City officials regarding PLEA’s failure to
submit a draft MOU.” On January 5, 2023, the City responded by providing
Goldwater the January 3, 2023 letter it sent to PLEA, stating it had no other
responsive documents. The City added that, for categories “1 and 2, any
working drafts of MOUs and any proposals submitted during negotiations
are not disclosable until filed with the City Clerk’s office.”

¶7 After further exchanges, on January 20, 2023, Goldwater
submitted a renewed request for the same three categories of documents.
On February 23, 2023, the City responded to the renewed request, stating it
had no documents responsive to the category 1 request, adding that “[o]nce
a draft MOU between the City of Phoenix and PLEA is finalized, it will be
released to the public for review and comment pursuant to the
requirements of the City Code.” For the category 2 request, although noting
it had no responsive documents, the City added that it would be

3

GOLDWATER v. PHOENIX, et al.
Opinion of the Court

“withholding all such responsive documents during negotiations” of the
2024 MOU. The City stated those documents need not be provided because
“[r]eleasing [those proposals] could create a chilling effect[,] . . . would
hinder the negotiations process,” and “would harm the best interest of the
City.” The City provided one other document responsive to the category 3
request.

¶8 Dissatisfied with that response, on March 1, 2023, Goldwater
filed this statutory special action against the City in superior court.
Goldwater’s complaint sought an order compelling production of the
requested documents as well as declaratory and injunctive relief. The
complaint alleged that Arizona Public Records Law and the City Code
required production of the requested documents. Goldwater then filed an
application seeking an order requiring the City to show cause why
Goldwater should not be granted the relief it was seeking. That application
did not request an evidentiary hearing.

¶9 After full briefing and oral argument, in May 2023, the court
denied Goldwater’s request for special action and injunctive relief. Noting
the City did not dispute the documents requested were public records
presumptively “open to inspection by any person,” Ariz. Rev. Stat. (A.R.S.)
§ 39-121 (2025),1 the court found the City had shown the documents were
protected from disclosure under the “best interests of the state” exception
recognized in Carlson v. Pima County, 141 Ariz. 487, 491 (1984). Although
the City had supported its position with declarations, “Goldwater did not
submit any controverting declarations.” Noting Goldwater’s interest in
disclosure, the court observed “the general concerns about transparency,
advocacy, and accountability identified by Goldwater are different . . . from
the particularized interest in preserving the ability to negotiate labor
agreements free of political pressure, collusion, and unnecessary delay due
to impasse” the City had shown. The court found the City’s “declarations
establish potential material harm (i.e., potential for undue pressure,
impasse, and collusion) that outweighs the presumption in favor of
disclosure.”

¶10 Although finding the City properly withheld those
documents, the court concluded the documents could not be withheld
indefinitely. Balancing the parties’ interests, the court ruled the documents
could be withheld from disclosure only “until the next MOU is finalized.”

1 Absent material revisions after the relevant dates, statutes and rules cited

refer to the current version unless otherwise indicated.

4

GOLDWATER v. PHOENIX, et al.
Opinion of the Court

See generally Church of Scientology v. City of Phx. Police Dep’t, 122 Ariz. 338
(1979) (prohibiting permanent non-disclosure).

¶11 As these events were unfolding in court, on April 13, 2023, the
proposed 2024 MOU was made available for public comment. Public
comment was received on that proposal at an April 19, 2023 City Council
meeting. Then, on May 3, 2023, the City Council approved the 2024 MOU.
The 2024 MOU, a publicly available document, was operative from July 1,
2023 until it expired in June 2024.

¶12 At an August 2023 court hearing, Goldwater requested an
evidentiary hearing. At a day-long evidentiary hearing in December 2023,
the court received exhibits and stipulated facts and heard testimony from
seven witnesses and arguments from the parties. The court’s 14-page
minute entry entered in January 2024 recited the stipulated facts,
summarized the applicable law and applied it to the disputed facts. In
addressing the conflicting evidence, the court found the testimony of the
City’s witnesses more persuasive and probative than Goldwater’s, in part
given their experience with City-affiliated MOUs. Again, noting
Goldwater’s interest in disclosure, the court observed that:

the general concerns about transparency,
advocacy, and accountability identified by the
[Goldwater] are different, however, from the
particularized interest in preserving the ability
to negotiate labor agreements free of political
pressure, collusion, and unnecessary delay due
to impasse. The City provided testimony from
individuals directly involved in the collective
bargaining process and with experience in labor
negotiations with and for the City of Phoenix.
[Goldwater] asserts that the City’s witnesses
merely speculate about potential harm. Even if
true, speculative concerns may be sufficient to
support the public interests exception. See Ariz.
Bd. of Regents v. Phx. Newspapers, Inc., 167 Ariz.
254 (1991); Scottsdale Unified Sch. Dist. No. 48 of
Maricopa Cnty. v. KPNX Broad. Co., 191 Ariz. 297
(1988). Here, the Court finds the testimony
presented by the City establishes potential
material harm (i.e., potential for undue
pressure, impasse, and collusion) that

5

GOLDWATER v. PHOENIX, et al.
Opinion of the Court

outweighs the presumption in favor of
disclosure.

Although declining the primary relief Goldwater requested, this January
2024 ruling stated the requested documents could be withheld from
disclosure only “until the next MOU is finalized.”2

¶13 After entry of a final judgment, Goldwater timely appealed.
This court has appellate jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution, and A.R.S. §§ 12-120.21 and -2101(A)(1). 3

DISCUSSION

I. Arizona’s Public Records Law.

¶14 The parties do not dispute the documents Goldwater
requested are “public records.” See Griffis v. Pinal Cnty., 215 Ariz. 1, 4 ¶ 9
(2007) (providing “three alternative definitions of public records,” a term
not defined by statute). By statute, absent an applicable exception, “[p]ublic
records and other matters . . . shall be open to inspection by any person.”
A.R.S. § 39-121. Arizona’s public records statute “evince[s] a clear policy
favoring disclosure.” Carlson, 141 Ariz. at 490. Although there are “many
statutory exceptions to this public right of inspection,” Scottsdale Unified
Sch. Dist., 191 Ariz. at 300 ¶ 9 (citing authority), there is no argument that
any statutory exception applies here. Case law, however, has recognized
three additional exceptions to the statutory public record disclosure
requirement, using “a balancing test to determine whether [1] privacy, [2]
confidentiality, or [3] the best interests of the state outweigh the policy in

2 This “next MOU” reference appears to be to an MOU that should have

been finalized and in place effective July 2024 (the 2025 MOU). The record
does not address a 2025 MOU, recognizing the complaint’s focus is
documents created leading up to the 2024 MOU. In addition, the record
does not show whether the City made available on or after July 1, 2024, the
documents leading up to the 2024 MOU, as the superior court’s order
appears to require.

3 The court acknowledges and appreciates the amicus brief filed by Poder

in Action and the American Civil Liberties Union Foundation of Arizona.
To the extent the amici ask the court to address issues and arguments the
parties did not raise, the court declines that request. See Town of Chino Valley
v. City of Prescott, 131 Ariz. 78, 84 (1981) (amicus curiae may not create,
extend or enlarge issues) (citing cases).

6

GOLDWATER v. PHOENIX, et al.
Opinion of the Court

favor of disclosure.” Griffis, 215 Ariz. at 5 ¶ 13 (citing Carlson, 141 Ariz. at
490). The question here is whether, in applying this Carlson balancing test,
the “best interests of the state” exception justifies the City’s refusal to
provide the public records Goldwater requested.

¶15 The “best interests of the state” exception is the least litigated
and least developed of the three common law exceptions to the requirement
that public records be disclosed. See, e.g., Scottsdale Unified Sch. Dist., 191
Ariz. at 299 ¶ 1 (addressing “privacy” exception); Ariz. Bd. of Regents, 167
Ariz. at 258 (addressing “confidentiality” exception). As a result, there is
comparatively little case law applying the “best interests of the state”
exception to disclosure. The City, as the party seeking to prevent disclosure
of public records, had the burden to prove that this exception overcomes
“the legal presumption favoring disclosure.” Scottsdale Unified Sch. Dist.,
191 Ariz. at 300 ¶ 9 (citation omitted).

II. Applicable Standard of Review.

¶16 Goldwater argues a de novo standard of review applies,
viewing the facts and resulting inferences in a light most favorable to
Goldwater. The City argues findings of fact should be reviewed for an
abuse of discretion, while the “legal conclusions drawn from those facts are
reviewed de novo.” Recognizing Goldwater challenges the January 2024
ruling entered after an evidentiary hearing, as directed by the Arizona
Supreme Court, this court applies the following standard of review:

The trial court appropriately conducted the
balancing test pursuant to Carlson. In reviewing
the trial court’s findings of fact, we apply two
different standards of review. We will uphold
its findings of fact unless clearly erroneous. We
are, however, free to draw our own conclusions
of law from these facts. Thus, whether plaintiffs
wrongfully denied defendants access to public
records ‘is an issue of law which we review de
novo.’

Id. at 302 ¶ 20 (citations omitted).

7

GOLDWATER v. PHOENIX, et al.
Opinion of the Court

III. Goldwater’s Arguments on Appeal.

¶17 Goldwater argues the superior court erred by (1) failing to
require the City to show a probability of specific material harm (rather than
potential material harm) will result if disclosure was required and (2) not
acknowledging that the requested documents “are produced in a process
funded by taxpayers and reveal critical information about the allocation of
hundreds of millions of dollars in taxpayer money on significant policy
questions affecting public safety.” The court addresses these arguments in
turn.

A. Goldwater Has Shown No Error in the Superior Court’s
Recitation and Application of the Law.

¶18 The Carlson balancing test provides that:

[t]o justify withholding public documents, the
. . . interest in non-disclosure must ‘outweigh
the general policy of open access.’” It is the
public official’s burden to “demonstrate
specifically how production of the records
would violate rights of privacy or
confidentiality or would be detrimental to the
best interests of the state.” A party seeking to
block disclosure must, under Carlson,
demonstrate “the probability that specific,
material harm will result from disclosure.”

Smith v. Town of Marana, 254 Ariz. 393, 397 ¶ 12 (App. 2022) (citations
omitted); accord Mitchell v. Superior Ct., 142 Ariz. 332, 335 (1984). By
definition, the Carlson balancing test is applied in a case-by-case manner,
Bolm v. Custodian of Recs., 193 Ariz. 35, 40 ¶13 (App. 1998) (citing cases), with
substantial deference owed to the superior court’s factual findings, see
Scottsdale Unified Sch. Dist., 191 Ariz. at 302 ¶ 20. As noted by the superior
court, given its very nature, even concerns about events that have not yet
occurred may be sufficient to support the “best interests of the state”
exception to disclosure. See Ariz. Bd. of Regents, 167 Ariz. at 258 (reversing
decision requiring disclosure of names of all prospects for university
president position, noting such disclosure “could chill the attraction of the
best possible candidates for the position.”).

8

GOLDWATER v. PHOENIX, et al.
Opinion of the Court

¶19 Goldwater asserts reversible error based on the proposition
that the superior court “based its decision on the mere ‘potential,’ for
generalized, abstract harms – as opposed to the ‘probability [of] specific,
material harm’ required” for the best interests exception to apply. On the
record presented, Goldwater has shown no error.

¶20 In context, the text Goldwater relies on comes from Mitchell,
which arose out of a request for a criminal defendant’s presentence report,
is highlighted in a longer passage from that case:

[W]hen a newspaper seeks information as a
member of the public, and a convicted offender
wishes to bar disclosure on the ground of
infringement of his privacy, the rights involved
are not coequal, and any decision about which
claim is to prevail must ordinarily favor the
public’s right of access. The burden of showing the
probability that specific, material harm will result
from disclosure, thus justifying an exception to
the usual rule of full disclosure, is on the party
that seeks non-disclosure rather than on the
party that seeks access.

By sealing all presentence reports, the 1973
Pima County rule places the burden on the
wrong party, producing a result that is directly
contrary to our rules.

142 Ariz. at 335 (emphasis added). In setting forth the applicable legal
standard, correctly quoting Mitchell, the superior court here stated “[t]he
probability of ‘specific, material harm’ must be shown.” In describing what
the City’s witnesses established, after weighing conflicting evidence and
assessing credibility, the superior court concluded that politicization of the
negotiating process “has the potential to effect the City’s interests,
including the taxpayers’ interests.” Goldwater has not shown how that
recitation of the legal standard or characterization of the evidence was
reversible error or how that summary was clearly erroneous, given the
evidence considered by the court. See Scottsdale Unified Sch. Dist., 191 Ariz.
at 302 ¶ 20 (citing cases).

¶21 In analyzing the evidence received, the superior court also
found the testimony of the City’s witnesses “supports a conclusion that the
City has a strong interest in maintaining the confidentiality of the records

9

GOLDWATER v. PHOENIX, et al.
Opinion of the Court

at issue;” the public comment process for an MOU recommended for
approval “allows an opportunity for transparency, advocacy, and
accountability” and Goldwater provided generalized concerns that were
different “from the particularized interest in preserving the ability to
negotiate labor agreements free of political pressure, collusion, and
unnecessary delay due to impasse.” Again, Goldwater has not shown how
these characterizations were reversible error or were clearly erroneous
based on the evidence presented. See id. (citing cases).

¶22 At the December 2023 evidentiary hearing, reciting Mitchell,
the superior court referenced “potential harm or probability, I guess, of
harm, if the documents were to be released.” In its January 2024 ruling, after
stating “[t]he probability of ‘specific, material harm’ must be shown,” the
superior court concluded that “the testimony presented by the City
establishes potential material harm (i.e., potential for undue pressure,
impasse, and collusion) that outweighs the presumption in favor of
disclosure.” Goldwater argues this use of “potential,” rather than
“probability,” is reversible error. But in addressing material harm, the
superior court referenced both a “probability,” which Goldwater argues
was required, and “potential,” which Goldwater argues was error. Even
though using both words to describe the standard, the record supports the
presumption that the superior court knew the applicable law and applied
it here. See State v. Lee, 189 Ariz. 608, 616 (1997) (“Trial judges ‘are presumed
to know the law and to apply it in making their decisions.’”) (citation
omitted).

¶23 Finally, Goldwater cites no case law or other applicable public
records authority showing a finding of potential material harm rather than
probable material harm constitutes reversible error. Nor does Goldwater
cite any case finding the Mitchell statement on which it relies was a
definitive, universal standard applicable to all facts in what the Arizona
Supreme Court has described as a case-by-case inquiry. See Bolm, 193 Ariz.
at 40 ¶13 (declining an invitation “to fashion a blanket rule protecting”
disclosure of certain types of documents “because the [Carlson] balancing
test must be applied on a case-by-case basis ‘to determine whether a
particular record should be released.’”) (citation omitted). Moreover,
appellate case law reflects a standard that, at least textually, differs from what
Goldwater argues Mitchell mandates. See ACLU v. Ariz. Dep’t of Child Safety, 240
Ariz. 142, 151 ¶ 29 (App. 2016) (describing the standard as requiring a
governmental entity opposing disclosure to “demonstrate specific material
harm or risks to privacy, confidentiality, or the best interests of the state”)
(citing cases). On this record, Goldwater has shown no error in the superior
court’s recitation and application of the law.

10

GOLDWATER v. PHOENIX, et al.
Opinion of the Court

B. Goldwater’s Argument that the Documents Are the Product
of a Process Funded by Taxpayers and Contain Information
About Allocating Significant Tax Dollars Involving Policy
Questions Does Not Show Error.

¶24 Arguing the superior erred in failing to order disclosure of the
documents it requested, Goldwater asserts the documents “are produced
in a process funded by taxpayers and reveal critical information about the
allocation of hundreds of millions of dollars in taxpayer money on
significant policy questions affecting public safety.” But public records
typically would be produced in a process funded by taxpayers and may
reveal information about funding originating from tax revenues and
implicating public policy. See Griffis, 215 Ariz. at 4 ¶ 9 (describing
alternative definitions for public records). That Goldwater requested public
records is a predicate for the Carlson balancing test to apply, not a basis to
conclude the superior court erred in applying it. See id. at 5 ¶ 13 (noting
Carlson balancing test applies only after the court determines “whether a
document is a public record”). Moreover, to the extent Goldwater seeks to
reweigh on appeal the evidence considered and weighed by the superior
court, this court declines that invitation. See, e.g., Hurd v. Hurd, 223 Ariz. 48,
52 ¶ 16 (App. 2009); In re Estate of Pouser, 193 Ariz. 574, 579 ¶ 13 (1999).
Goldwater’s argument that the documents it seeks stem from a taxpayer-
funded process allocating significant tax dollars based on policy
determinations does not show error by the superior court.

C. Remand Is Required for an In Camera Review of Redacted
Documents Responsive to Category 2 of the Request.

¶25 The record presented provides two primary reasons for why
further proceedings are required for the order preventing the disclosure of
documents responsive to category 2 of the request.

¶26 First, the record suggests much of each MOU is boilerplate
that does not change in the meet and confer process. Goldwater filed the
draft and final MOU for the period ending June 30, 2023 (the 2023 MOU).
Apparently building off a 2019-2021 MOU, the 62-page draft 2023 MOU
shows changes of any sort on about 20 pages, with half of those pages the
result of removing one section. That comparison shows the vast majority of
the MOU remained unchanged for years.

¶27 For the 2024 MOU, the changes apparently were far more
modest. In closing arguments at the December 2023 evidentiary hearing,
the City asserted the 2024 MOU was 45-pages long and “there’s maybe ten
lines of text that are changed throughout . . . . They’re very minimal

11

GOLDWATER v. PHOENIX, et al.
Opinion of the Court

changes.” Although offering that argument for a different purpose, it is a
concession that the changes reflected in the 2024 MOU, compared to the
prior MOU, are “minimal” and small in number.

¶28 Unchanged provisions of MOUs, in draft or final form, based
on prior MOUs that are publicly available public records, would not appear
to be protected from disclosure. Indeed, the City does not appear to suggest
disclosure of boilerplate portions of the MOU that remain unchanged,
either during negotiations or in a proposed final MOU, “would be
detrimental to the best interests of the state.” Smith, 54 Ariz. at 397 ¶ 12
(citation omitted).

¶29 Second, the record provided does not include the documents
responsive to Goldwater’s category 2 request. Indeed, it appears those
documents were never provided to or reviewed by the superior court.

¶30 For nearly 75 years, the Arizona Supreme Court has
highlighted the need for in camera court review in undertaking the Carlson
balancing test, particularly in cases where the best interests of the state is
claimed as an exception to public disclosure. In Mathews v. Pyle, for
example, in addressing whether documents in the Governor’s Office were
protected from disclosure, the Arizona Supreme Court reversed a dismissal
and directed the documents “be produced in court for the private
examination of the trial judge in order that the court may determine
whether . . . [the] documents are confidential and privileged or whether
their disclosure would be detrimental to the best interests of the state.” 75
Ariz. 76, 81 (1952). To avoid any doubt about the need for such court review,
Mathews added “In no other way can such questions be determined.” Id.
(emphasis added). In Carlson, the Arizona Supreme Court repeated that in
camera review and partial redaction are “practical alternative[s] to the
complete denial of access.” 141 Ariz. at 490–91 (citing cases); accord Mitchell,
142 Ariz. at 334 (“where the court’s discretion has been properly invoked,
[we] have asked trial courts to make in camera inspections of the relevant
documents and balance the rights of the parties.”).

¶31 Goldwater correctly notes the City did not seek in camera
review and did not provide the court unredacted and redacted copies of the
documents it claims are shielded from disclosure. As a result, Goldwater
argues, “the City has waived both alternatives to full disclosure.”
Recognizing waiver typically is discretionary, the importance of in camera
review has prompted the Arizona Supreme Court to require such review
even over the objection of the party claiming asserted public records should
not be disclosed.

12

GOLDWATER v. PHOENIX, et al.
Opinion of the Court

¶32 In Griffis, the party arguing that records should not be
disclosed given an expectation of privacy “declined” the superior court’s
offer to conduct an in camera inspection of those documents. 215 Ariz. at 3
¶ 4. Even then, the Arizona Supreme Court did not find waiver. Instead,
noting no court had reviewed the disputed documents, Griffis declared
“[a]bsent such a review, we have no record on which we can determine the
nature and content of the requested documents.” Id. at 6 ¶ 17. And even
though the party opposing production had declined the in camera review
offer, Griffis remanded “to permit the superior court to review the content
of the disputed [documents] in camera.” Id.;4 accord Schoeneweis v. Hamner, 223 Ariz. 169, 175 ¶ 22 (App. 2009) (“Although no Arizona decision imposes
a per se rule requiring an in camera inspection of public records (and we do
not announce one here), the necessity of such a review becomes nearly
inescapable when the court contemplates the release of documents that
inherently raise significant privacy concerns.”).

¶33 In reaching this conclusion, the court writes narrowly. Most
cases involving common law exceptions to producing public records do not
turn on whether that production would be against the best interests of the
state. The best interests of the state exception to the public records law and
the applicable legal standards differ, qualitatively, from the common law
privacy and confidentiality exceptions. Among other things, the best
interests of the state exception is more amorphous and implicates broader
interests than privacy and confidentiality concerns, which typically are
personal. See Phx. Newspapers, Inc. v. Keegan, 201 Ariz. 344, 348-49 ¶ 18 (App.
2001) (“Th[e] ‘best interests of the state’ standard is not confined to the
narrow interest of either the official who holds the records or the agency he
or she serves. It includes the overall interests of the government and the
people.”). As a result, the legal standards for these three common law
exceptions to disclosure of public records address different interests and
involve different kinds of balancing in applying the Carlson balancing test.

4 Although the Griffis remand was “to determine whether [the documents]

are subject to the public records law,” id. at 6 ¶ 17, the same concept applies
to a claim that public records are not subject to disclosure.

13

GOLDWATER v. PHOENIX, et al.
Opinion of the Court

¶34 The result on remand in this case may yield an outcome that
significantly varies from the order challenged in this appeal, given review
of the documents by the superior court, the passage of time or other factors.
For now, however, as directed by Arizona Supreme Court cases, remand is
necessary for the City to provide to the superior court, for in camera review,
both the unredacted public records and versions of those documents with
redactions reflecting what the City claims should not be disclosed based on
the best interests of the state exception.

ATTORNEYS’ FEES ON APPEAL

¶35 Goldwater requests an award of attorneys’ fees on appeal
pursuant to A.R.S. §§ 12-341, 12-348, 12-2030, and 39-121.02; the Arizona
Rules of Procedure for Special Actions and the private attorney general
doctrine. Given the remand, Goldwater’s request is denied without
prejudice so that, on remand, the superior court may consider whether
Goldwater is eligible for an award of fees on any of these grounds and, if
so, what reasonable fees should be awarded.

CONCLUSION

¶36 The order prohibiting disclosure is remanded for further
proceedings consistent with this opinion.

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

14