JUDICIAL WATCH INC v. KRISTEN MAYES

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

JUDICIAL WATCH, INC.,
Plaintiff/Appellant,

v.

KRISTIN K. MAYES, IN HER OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE
STATE OF ARIZONA; ARIZONA DEPARTMENT OF LAW, AN EXECUTIVE AGENCY
OF THE STATE OF ARIZONA,
Defendants/Appellees.

No. 2 CA-CV 2025-0322
Filed April 29, 2026

Appeal from the Superior Court in Maricopa County
No. CV2025005732
The Honorable Susanna C. Pineda, Judge

VACATED AND REMANDED

COUNSEL

David J. Hoffa, Phoenix
Counsel for Plaintiff/Appellant

Kristin K. Mayes, Arizona Attorney General
By Nancy M. Bonnell, Assistant Attorney General, Phoenix
Counsel for Defendants/Appellees

Heath Law PLLC, Scottsdale
By Ryan L. Heath
Counsel for Amicus Curiae Warren Petersen
 JUDICIAL WATCH, INC. v. MAYES
Opinion of the Court

OPINION

Judge Sklar authored the opinion of the Court, in which Presiding Judge
Kelly and Chief Judge Staring concurred.

S K L A R, Judge:

This case arises out of a special action in the trial court to
compel disclosure of public records. Judicial Watch, Inc. sought documents
from the Arizona Attorney General’s Office concerning its relationship with
an entity called States United Democracy Fund. The request also
encompassed States United’s predecessor, the Voter Protection Program.
The court entered judgment against Judicial Watch, in favor of the attorney
general and her office. The court apparently concluded that the office had
provided a sufficient index of documents that it had withheld as privileged.
The court also concluded that the office had adequately searched for
responsive records.

On appeal, Judicial Watch challenges both conclusions. As
we explain below, we agree with Judicial Watch that neither the index nor
the search was sufficient. We therefore vacate the trial court’s judgment
and remand for further proceedings.

BACKGROUND

In December 2024, Judicial Watch submitted a public records
request to the attorney general’s office seeking records from January 1, 2020,
through the date of the office’s response. The records sought included:

Any communications between [the attorney
general’s office] and [States United Democracy
Fund].

....

Any agreement or letter of engagement between
SUDC and [the attorney general’s office].

....

2
 JUDICIAL WATCH, INC. v. MAYES
Opinion of the Court

Any communications between SUDC or [the
Voter Protection Program] and any individual
or entity, public or private, discussing,
researching, mentioning, or illuding to the
investigation or prosecution of Republican state
electors or “fake electors” for the 2020
presidential election.

Judicial Watch also requested an index of withheld records, pursuant to
A.R.S. § 39-121.01(D)(2).

Shortly after receiving the request, the attorney general’s
office furnished documents identified through a search of certain records
dated January 1, 2023 and after. It informed Judicial Watch that additional
responsive records had been withheld due to attorney-client and
work-product privileges. The response also stated that the office was not
aware of any correspondence with the Voter Protection Program but that it
could conduct a search if more details were provided. Judicial Watch
responded with the Voter Protection Program’s domain name. The office
then performed another search, which returned no additional records.
Later, pursuant to a different records request, the office discovered and
disclosed additional responsive records.

In February 2025, Judicial Watch filed a special-action
complaint. See A.R.S. § 39-121.02. It alleged that the attorney general’s
office had violated Arizona’s public-records laws by failing to promptly
furnish public records and failing to furnish an index of records it had
withheld. At some point thereafter, the office provided an index
identifying two categories of documents that it asserted were subject to
either the attorney-client privilege or work-product protection.

At a status conference in May 2025, Judicial Watch asked the
trial court to require the attorney general’s office to provide additional
information regarding the assertedly privileged documents. The court
declined to do so. It apparently concluded that the office had provided a
sufficient index identifying those documents.

In June, after an evidentiary hearing, the trial court also
concluded that the attorney general’s office had adequately searched for
and promptly provided records in response to Judicial Watch’s request. It
then entered a final judgment in favor of the office. Judicial Watch
appealed.

3
 JUDICIAL WATCH, INC. v. MAYES
Opinion of the Court

PRIVILEGE ASSERTIONS

Judicial Watch first argues that the trial court committed an
error of law by “declining to scrutinize the Attorney General’s privilege
assertions.” Specifically, it argues that the court improperly refused to
receive evidence on whether the privilege assertions were substantiated
and denied Judicial Watch the ability to ask about the index of withheld
records. It also argues that the court improperly allowed the attorney
general’s office to redact the names of States United representatives from
the engagement letter.

I. The privilege log was insufficient under Fann v. Kemp

As noted, the attorney general’s office supplied Judicial
Watch with an index of assertedly privileged documents that were
otherwise responsive to Judicial Watch’s request. The index contained two
entries. Those entries referred collectively to twenty-one emails and
twenty-nine attachments that the office had withheld. One entry read,
“Emails from [attorney general’s office] attorneys to States United
attorneys.” The other entry read, “Emails from States United attorneys to
[attorney general’s office] attorneys.” The index listed “Attorney-client
privilege and Attorney work-product” as the reason for withholding all the
documents referenced by these entries. The index did not contain dates, the
names of senders and recipients, or any additional description of the
documents. As noted, the trial court appears to have concluded at the May
2025 status conference that this index was sufficient. However, the index
was not admitted into evidence at that hearing.

Public-records requests are subject to certain limitations, one
of which is the attorney-client privilege. See Primary Consultants, L.L.C. v.
Maricopa Cnty. Recorder, 210 Ariz. 393, ¶ 9 (App. 2005) (no disclosure
required when statute restricts access); A.R.S. § 12-2234. We narrowly
construe privileges, and the party asserting a privilege has the burden of
proving each of its elements. Fann v. Kemp, 253 Ariz. 537, ¶¶ 8-9 (2022).
When public records are withheld, Section 39-121.01 requires the agency to
provide an “index of records or categories of records that have been
withheld and the reasons the records or categories of records have been
withheld,” or else access is deemed denied. § 39-121.01(D)(2), (E).

In Fann v. Kemp, which involved an assertion of legislative
privilege, our supreme court explained that index entries must contain
more than generalities. 253 Ariz. 537, ¶ 34. Rather, an index must include
“specific assertions explaining why the document is purportedly privileged

4
 JUDICIAL WATCH, INC. v. MAYES
Opinion of the Court

to the greatest extent possible without revealing its content or otherwise
violating the privilege.” Id. (emphasis omitted). An index lacking in
specificity cannot support a prima facie showing of the asserted privilege.
See id. ¶ 36. Thus, index entries should adhere to Rule 26(b)(6)(A)(i) of the
Arizona Rules of Civil Procedure and sufficiently describe the
communications to allow assessment of the asserted privilege. Id. ¶ 34.

The index in Fann did not satisfy these requirements. Id. It
described the communications in vague terms such as “broadly relating to
the planning, conduct, or results of [an] [a]udit” and “stating generally that
withheld e-mails contained ‘internal legislative discussions.’” Id. Our
supreme court explained that, because these descriptors were vague, those
communications could have included non-privileged matters. Id.

Here, the index provided by the attorney general’s office
supplies no context about the withheld emails that would allow a court or
any other party to determine if a privilege applies. The index therefore falls
short of the standards set forth by Fann. See id. It follows that the office has
not made a prima facie showing of privilege. See id. ¶ 8; Clements v. Bernini, 249 Ariz. 434, ¶ 8 (2020) (existence of attorney-client relationship required
to show privilege). We thus agree with Judicial Watch that the privilege
log’s insufficiency prevented the trial court from adequately scrutinizing
the office’s privilege assertions.

The attorney general’s office argues that Fann’s requirements
apply only where the “privilege in question is complicated—like the
legislative privilege.” In light of Fann’s reliance on Rule 26(b), we disagree.
See 253 Ariz. 537, ¶ 33. That rule expressly governs assertions of
attorney-client privilege and work-product protection. We do not believe
that our supreme court would direct public entities to apply the Rule 26(b)
standard only in contexts in which the rule itself would not apply. Rather,
we read Fann as applying to the privileges asserted by the office here.

The attorney general’s office also argues that the legislative
history of Section 39-121.01 supports its position that the index requires less
detail than a typical privilege log. But this argument is at odds with Fann,
by which we are bound. See City of Phoenix v. Leroy’s Liquors, Inc., 177 Ariz.
375, 378 (App. 1993) (“[W]e are bound by decisions of the Arizona Supreme
Court and have no authority to overrule, modify, or disregard them.”). We
therefore reject the argument.

Instead, we remand to allow the attorney general’s office to
submit an index that comports with Fann. See 253 Ariz. 537, ¶ 35. If Judicial

5
 JUDICIAL WATCH, INC. v. MAYES
Opinion of the Court

Watch challenges any assertions of privilege or work-product protection,
the trial court should meaningfully consider those challenges. Given this
resolution, we need not address Judicial Watch’s argument that the court
deprived it of due process by denying it the chance to be further heard on
the privilege issue.

II. The attorney general’s office supplied insufficient information to
support a redaction on the States United engagement letter

Judicial Watch additionally argues that the trial court erred
by not analyzing whether the attorney general’s office properly redacted
the names of States United employees “principally responsible for the
engagement” from the engagement letter. The unredacted portions of the
letter do not provide any context as to these employees’ roles within States
United. Even assuming that they were attorneys and the office had validly
claimed privilege, an attorney’s identity generally falls outside the
privilege’s protections. See Granger v. Wisner, 134 Ariz. 377, 379 (1982)
(attorney-client privilege only protects communications, not identity of
parties). And, to the extent the office might have some valid basis for the
redaction, neither the index nor the context of the letter itself supplies it.
We thus remand to allow the office to either produce a version of the letter
without the names redacted or assert a privilege that the court can address
in the first instance.

SUFFICIENCY OF THE SEARCH

Judicial Watch also argues that the trial court erred by
concluding that the attorney general’s office had performed a sufficient
search for responsive records. Specifically, Judicial Watch argues that the
court improperly allowed the office to limit the timeframe more narrowly
than had been requested and to impose keyword-search limitations. We
review de novo whether a denial of access to public records was wrongful
but defer to the trial court’s findings of fact. W. Valley View, Inc. v. Maricopa
Cnty. Sheriff’s Off., 216 Ariz. 225, ¶ 7 (App. 2007).

The attorney general’s office’s employee who processed
Judicial Watch’s request testified that shortly before that request, The
Washington Post had submitted a similar one. To fulfill that request, the
employee and her supervisor had identified several individuals whose
records were likely to contain the requested information. Once they
received Judicial Watch’s request, they concluded that portions of its
request were “almost identical to the request that [The Washington Post] had
also submitted.” Due partly to this similarity, the employee did not

6
 JUDICIAL WATCH, INC. v. MAYES
Opinion of the Court

perform an independent search for the records Judicial Watch had
requested. Rather, except for the later search for records involving the
Voter Protection Program, she relied on the same search queries as for The
Washington Post’s request.

In describing those searches, the employee testified that she
had searched for responsive records using the States United domain name
in conjunction with keywords such as “2020 election,” “fake electors,” and
“alternate electors.” That search was limited to emails sent to or received
from the States United domain since January 1, 2023. When asked why she
did not search for records going back to January 1, 2020, the employee
explained that she had understood the request to be seeking records related
to the current attorney general’s fake-electors investigation and
prosecution. She added that there was “no relationship between [the
attorney general’s office] and States United prior to the Mayes
Administration when [attorney general Mayes] took office in 2023.” The
employee also testified that the search had been limited, at least initially, to
certain custodians. Judicial Watch does not appear to argue that the office
was required to include additional custodians.

Arizona law requires a government agency to search for
records upon request. See A.R.S. §§ 39-121 (public records open to
inspection), 39-121.01(D)(1) (any person may request). Public records are
entitled to a “strong presumption in favor of disclosure.” McKee v. Peoria
Unified Sch. Dist., 236 Ariz. 254, ¶ 23 (App. 2014). Government agencies
seeking to avoid disclosure bear the burden of overcoming the presumption
that disclosure is required. Judicial Watch, Inc. v. City of Phoenix, 228 Ariz.
393, ¶¶ 25-30 (App. 2011).

A public-records search must be “reasonably calculated to
uncover all relevant documents.” Hodai v. City of Tucson, 239 Ariz. 34, ¶ 32
(App. 2016). The agency has the initial burden to show it adequately
searched for responsive records. Id. ¶ 30. Where requested records are
readily identifiable, an agency may not deny the request merely because the
records contain a large quantity of information. Id. ¶ 29. An agency seeking
to avoid disclosure “must point to specific risks with respect to a specific
disclosure.” Star Publ’g. Co. v. Pima Cnty. Atty’s Off., 181 Ariz. 432, 434 (App.
1994). If the administrative burden of disclosing documents is
unreasonable, our courts have recognized that agencies may withhold
documents in the best interests of the state. See Hodai, 239 Ariz. 34, ¶ 27; see
also Carlson v. Pima County, 141 Ariz. 487, 491 (1984) (allowing custodian of

7
 JUDICIAL WATCH, INC. v. MAYES
Opinion of the Court

public records to deny access in “the best interests of the state,” subject to
judicial scrutiny).

Here, the testimony from the attorney general’s office
employee demonstrates that the office did not search for all documents
responsive to Judicial Watch’s request. That request sought all
“communications between the [attorney general’s office] and [States
United]” dating back to January 1, 2020, with no subject-matter limitations.
But as the employee testified, the office imposed both date and keyword
limits on its search. Although she explained the rationale for those limits,
neither her testimony nor the attorney general’s office’s briefing identified
any legal basis for imposing them. See Hodai, 239 Ariz. 34, ¶ 7. At best, the
employee testified that the limitations were appropriate because prefatory
language in the request, as well as some of the individual requests,
concerned the fake-electors litigation. But the request for all
communications between the office and States United was not restricted to
this subject matter. We therefore find that explanation unpersuasive.

Beyond its employee’s explanation, the attorney general’s
office has not explained why it was unable to perform the search inclusive
of the whole timeframe in Judicial Watch’s request. This timeframe
includes 2020 through 2022, even if it was unlikely that any responsive
documents from those years existed. Nor has the office asserted, let alone
demonstrated, that such a search would have posed any unreasonable
administrative burden. See id. ¶ 27. The office disclosed a small quantity
of documents to Judicial Watch, and its privilege log identified only fifty
documents. These quantities do not suggest that a complete search would
have been burdensomely large. Furthermore, the office has not adequately
explained why it limited its search to emails, when the request sought “any
communications.” Nor has it persuasively explained why it could not
retrieve all the emails sent between the office and States United as Judicial
Watch had requested, instead of using limiting keywords.

We therefore conclude that the attorney general’s office has
not met its burden of showing that it adequately searched its records. See
id. ¶ 30. The office was not entitled to disregard Judicial Watch’s
unambiguous records request in favor of its own, narrower interpretation.
See Phx. New Times, L.L.C. v. Arpaio, 217 Ariz. 533, ¶ 38 (App. 2008) (“[A]n
agency may not justify its failure to provide records by claiming that it
assumed that the person requesting the records would no longer be
interested in them under certain circumstances.”). We remand with
directions that the trial court order the office to search its records under the

8
 JUDICIAL WATCH, INC. v. MAYES
Opinion of the Court

applicable legal standard and produce any additional responsive
documents. The court may conduct any additional hearings that it deems
necessary to carry out these directions. Given our remand, we need not
address Judicial Watch’s arguments that the trial court deprived it of due
process by denying it the chance to further brief the issue.

ATTORNEY FEES AND COSTS

Judicial Watch seeks its attorney fees and costs under A.R.S.
§§ 12-341, 12-349(A)(1) and (3), and 39-121.02(B). Section 39-121.02(B)
authorizes an award when a party seeking public records has “substantially
prevailed.” In light of our remand, whether Judicial Watch is more
successful than not in “obtaining the requested records, defeating the
government’s denial of access to public records, or securing other relief” is
yet undetermined. See Am. C.L. Union of Ariz. v. Ariz. Dep’t of Child Safety,
251 Ariz. 458, ¶ 28 (2021). We therefore decline to award fees under that
statute, without prejudice to Judicial Watch seeking to recover its fees in the
trial court. None of the other authority cited by Judicial Watch allows for a
fee award in this context. However, as the prevailing party on appeal,
Judicial Watch is entitled to recover its costs under Section 12-341 upon
compliance with Rule 21(b) of the Arizona Rules of Civil Appellate
Procedure.

DISPOSITION

For the foregoing reasons, we vacate the trial court’s
judgment and remand this case for further proceedings consistent with this
opinion.

9