Jarron Smith v. Town of Marana

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

JARRON SMITH,
Plaintiff/Appellee,

v.

TOWN OF MARANA,
Defendant/Appellant.

No. 2 CA-CV 2022-0008
Filed October 28, 2022

Appeal from the Superior Court in Pima County
No. C20212398
The Honorable Richard E. Gordon, Judge

AFFIRMED

COUNSEL

Frazer Ryan Goldberg & Arnold LLP, Phoenix
By James M. Cool and Joshua N. Mozell

and

American Civil Liberties Union of Arizona, Phoenix
By Benjamin L. Rundall
Counsel for Plaintiff/Appellee

Jane Fairall, Marana Town Attorney
By Elizabeth S. Shelton, Deputy Town Attorney, Marana
Counsel for Defendant/Appellant
 SMITH v. TOWN OF MARANA
Opinion of the Court

OPINION

Presiding Judge Eckerstrom authored the opinion of the Court, in which
Chief Judge Vásquez and Judge Cattani concurred.

E C K E R S T R O M, Presiding Judge:

¶1 In this public records action, the Town of Marana (“the
Town”) appeals from the trial court’s ruling ordering it to release
unredacted police records to Jarron Smith, pursuant to A.R.S. § 39-121.01.
It further challenges the court’s award of attorney fees to Smith. For the
reasons that follow, we affirm.

Factual and Procedural Background

¶2 In April 2021, Smith was shot during an altercation with
another individual. The altercation took place in a public parking lot and
in front of multiple witnesses. The Town’s law enforcement officers
investigated and submitted the case for review by the Pima County
Attorney’s Office, which decided not to file charges against either
participant in the altercation. The County Attorney reasoned that the
shooter’s actions appeared to be justified under Arizona law as an act of
self-defense or defense-of-others, based on statements of neutral witnesses,
interviews with both parties, and a review of video and physical evidence.

¶3 Later in April 2021, Smith submitted a public records request
to the Town, pursuant to § 39-121.01. One week later, the Town provided
a police report, redacted to exclude, as pertinent here, the names and
images of both individuals involved in the altercation.1 The following day,
Smith filed a second public records request with the Town. There, he
requested “[a]ll policies and procedures” regarding the Town’s “processing
of public records requests,” including how the Town “identifies potentially
confidential or private information,” the standards the Town “employs to
determine” what information to withhold, and how the Town “determines
what redactions to make.” The same day, Smith sent a letter to the Town

1The report also redacted the name of the shooter’s girlfriend, who
was a percipient witness to the incident, and of Smith’s mother, who was
not a witness.

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demanding the prompt release of the unredacted police report and noting
that Smith had authorized his attorney “to file suit and pursue attorney fees
for all work performed in pursuit of this public records request.” Three
days later, also by letter, the Town provided Smith with its legal reasoning
for making the redactions. It also sent Smith a copy of a prior memo written
by the Town’s counsel, which outlined the Town policy for making
redactions in response to a public records request.

¶4 In May 2021, Smith filed a statutory special action complaint
seeking to compel the Town to comply with Arizona’s public records
statutes. The complaint alleged that the Town was refusing to disclose the
names and images of the individuals involved in the shooting even though
the County Attorney had already declined to prosecute either individual.
It further alleged the Town was withholding the redacted information “to
protect a person who might either be a former law enforcement officer or
town official” and that it was seeking “to avoid criticism about its
investigation into the shooting.” Smith requested relief in the form of
orders compelling the Town to disclose certain information he believed to
be absent from the already-disclosed records, removal of redactions from
the videos and photographs disclosed by the Town, and “damages and
attorney fees.”

¶5 That same day, Smith also filed an application for an order for
the Town to show cause “why the public records . . . should not be turned
over” and attorney fees awarded. Smith argued the Town’s redactions had
hindered his ability to “adequately complete an investigation into the
shooting which may have violated his civil and constitutional rights.”

¶6 After a hearing on the order to show cause, the trial court
ruled in Smith’s favor. Reasoning that the records were public records and
the Town had not shown why disclosure of the names, videos, and
photographs of the shooter and his girlfriend “would be harmful to any
significant privacy interest,” the court concluded the balance of interests
under Carlson v. Pima County, 141 Ariz. 487 (1984), “decidedly tip[ped] in
favor of inspection” without redaction.

¶7 Smith then requested an award of $20,000 in attorney fees, as
well as $365.53 in costs. The trial court awarded Smith partial attorney fees
($14,000) and his costs, as provided by A.R.S. §§ 39-121.02(B) and 12-341,
respectively. The court found that a fee award was appropriate even
though the Town withheld only “a limited redaction” and that it “disclosed
the majority of the records requested,” that it timely provided a redaction

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log, and that it acted in good faith despite the court’s ultimate disagreement
over whether case law required it to disclose the names in question.

¶8 This appeal followed. We have jurisdiction pursuant to
A.R.S. §§ 12-2101(A)(1), 12-120.01(A)(1).

Public Records Request

¶9 The Town argues the trial court erred (1) by determining that
A.R.S. § 13-4401 did not apply to defeat the presumption favoring
disclosure of public records and (2) in its application of the Carlson
balancing test regarding public records disclosures. Both arguments fail.

¶10 We review the trial court’s findings of fact for an abuse of
discretion and will affirm unless the findings are clearly erroneous. See
Scottsdale Unified Sch. Dist. No. 48 v. KPNX Broad. Co., 191 Ariz. 297, ¶ 20
(1998). We review de novo the court’s legal conclusions drawn from those
facts. See id. Thus, the trial court’s determination of “whether plaintiffs
wrongfully denied defendants access to [unredacted] public records ‘is an
issue of law which we review de novo.’” Id. (quoting Cox Ariz. Publ’ns, Inc.
v. Collins, 175 Ariz. 11, 14 (1993)).

¶11 The parties do not appear to dispute that the police reports,
videos, and photographs at issue constitute public records and are thus
subject to the public records laws. See A.R.S. §§ 39-121 to 39-128; KPNX-TV
v. Superior Court, 183 Ariz. 589, 592 (App. 1995). As such, the records Smith
requested are “presumed open to the public for inspection.” KPNX-TV, 183
Ariz. at 592; Carlson, 141 Ariz. at 491. This approach serves “to open
government activity to public scrutiny.” Lake v. City of Phoenix, 222 Ariz. 547,
¶ 7 (2009). When a situation involves “potential or apparent unlawful
conduct,” the government’s response to that situation “merits public
scrutiny.” Schoeneweis v. Hamner, 223 Ariz. 169, ¶ 21 (App. 2009).

¶12 However, full disclosure is not absolute. See Carlson, 141 Ariz.
at 491. A number of statutory exceptions curtail the public right of
inspection. Scottsdale Unified, 191 Ariz. 297, ¶ 9. In addition, to prevent
potential “substantial and irreparable private or public harm,” the
custodian of records may lawfully refuse or redact records “where the
countervailing interests of confidentiality, privacy or the best interests of
the state” outweigh full disclosure. Carlson, 141 Ariz. at 491. “To justify
withholding public documents, the . . . interest in non-disclosure must
‘outweigh the general policy of open access.’” Phx. Newspapers, Inc. v.
Keegan, 201 Ariz. 344, ¶ 19 (App. 2001) (quoting Carlson, 141 Ariz. at 491).
It is the public official’s burden to “demonstrate specifically how

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production of the records would violate rights of privacy or confidentiality
or would be detrimental to the best interests of the state.” KPNX-TV, 183
Ariz. at 592; see also Phx. Newspapers, 201 Ariz. 344, ¶ 19. A party seeking to
block disclosure must, under Carlson, demonstrate “the probability that
specific, material harm will result from disclosure.” Mitchell v. Superior
Court, 142 Ariz. 332, 335 (1984) (voiding general rule keeping convicted
offenders’ presentence reports confidential).

¶13 The Town argues, as it did in the trial court, that a statutory
exception applies because the shooter is a victim under § 13-4401. It urges
that “a person can be a ‘victim’ for purposes of the statute even when the
crime does not result in an arrest or formal criminal charges.” It thus argues
that A.R.S. § 39-121.04 applies and the “burden that would normally apply
under the Carlson balancing test” is “flip[ped],” requiring Smith to “prove
that [the] public’s right to know outweigh[ed] the privacy interest” of the
shooter.

¶14 Contrary to the Town’s assertion, by statute, crime victims’
rights, including those outlined in A.R.S. §§ 13-4401 through 13-4408,
“attach when a defendant is arrested or formally charged.” Z.W. v. Foster, 244 Ariz. 478, ¶ 3 (App. 2018); § 13-4402(A) (rights and duties established
by § 13-4401 through 13-4408 “arise on the arrest or formal charging of the
person or persons who are alleged to be responsible for a criminal offense
against a victim”). And although there may be unique circumstances
compelling a government entity to protect an individual’s privacy interest
as a presumptive victim, nothing in this record suggests that the shooter
should be so characterized. As the trial court reasoned, “any criminal
investigation was focused on the shooter,” and we thus agree with the
court’s determination that the shooter cannot “fairly be characterized as a
victim for purposes of disclosure law.” It follows that Smith was not
required to establish that the public interest in disclosure outweighed the
shooter’s right to privacy, given that § 39-121.04(A) does not apply.

¶15 The Town also challenges the trial court’s application of the
Carlson balancing test, arguing that participants in uncharged public actions
carry a heightened privacy interest similar to the privacy interest of
individuals, including suspects and victims, involved in criminal
investigations before an arrest or the filing of charges. And, it observes, our
legislature has been mindful of the privacy interests of criminal defendants
in some contexts. See, e.g., A.R.S. §§ 13-2813 (misdemeanor offense to
knowingly disclose indictment, information, or complaint before taking
defendant into custody or service of summons), 13-4051 (providing right to
petition for record notation of having been cleared of charges after

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wrongful arrest, indictment, or charge), 36-2862(C) (providing for sealing
of conviction and other records related to expunged marijuana offenses),
41-1750 (outlining Department of Public Safety’s duty to collect, store, and
disseminate information related to certain criminal charges, arrests, and
convictions), see also § 13-911 (providing for sealing of case records related
to criminal offense after completion of sentence, dismissal of charges,
acquittal, or declination of charges after arrest) (effective 2023).

¶16 However, the statutes the Town cites pertain to records
associated with activity that has, at minimum, resulted in an arrest or
formal charge for suspected criminal action. Here, the trial court properly
concluded (albeit tacitly) that the privacy interest is different for individuals
who have never been arrested for, charged with, or convicted of a crime.
Notably, recorded past criminal conduct carries potential ramifications for
future activities, such as applying for housing or employment, that
uncharged conduct does not. See § 13-911(I)(5) (individuals whose records
sealed pursuant to § 13-911 may state they have “never been arrested for,
charged with or convicted of the crime that is the subject of the arrest or
conviction, including in response to questions on employment, housing,
financial aid or loan applications” absent certain exceptions).

¶17 During oral argument on appeal, the Town emphasized that
changes in technology, in particular ready access to internet search engines,
may increase the risk of harm involved in disclosing private actors’
identities in public records requests. Such changes—which make publicly
disclosed information both more accessible and potentially more intrusive
of privacy interests—undoubtedly raise the stakes of disclosure. But they
do not change the nature of the competing interests addressed under our
current statutory scheme. And, whether those potential increased risks
merit a substantive change in the law is for the legislature, not this court, to
determine. See Winkle v. City of Tucson, 190 Ariz. 413, 415 (1997) (Arizona
constitution “requires the judiciary to refrain from meddling in the
workings of the legislative process”). Although we are sympathetic to the
Town’s reasoning that “the bell of releasing information cannot be unrung,”
outside of the context of past alleged criminal activity, the Town has not
specifically demonstrated why the shooter’s right to privacy in his actions
taken in public outweighs the presumption of openness in public records.
See Schoeneweis, 223 Ariz. 169, ¶¶ 22-23 (directing trial court to conduct in
camera review of records relating to potential homicide, reasoning that
“ongoing privacy interests of living crime victims . . . must be weighed
against the need for public awareness of the government’s performance of
its law enforcement functions”); cf. A.H. Belo Corp. v. Mesa Police Dep’t, 202
Ariz. 184, ¶¶ 12, 16-17 (App. 2002) (privacy interests of child and family

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outweighed public interest in audio recording of 9-1-1 call containing
“recorded suffering” of child while at home, particularly where transcript
of call already publicly available).

¶18 Nor has the Town directed us to any case law suggesting the
shooter has any special privacy interest in preventing the release of his
name outside the context of victim or criminal rights. Our supreme court
has reasoned that birth dates are private because they “are information
usually restricted to a class of persons, typically family members and
friends.” Scottsdale Unified, 191 Ariz. 297, ¶ 16. Names, however, are not
similarly withheld as private information made available to a smaller
subsection of one’s community. At oral argument, the Town noted that
Scottsdale Unified is distinguishable because the public has a clear interest in
knowing the identities of its school districts’ employees. We agree that such
a public interest may be particularly compelling. However, the Town’s
blanket policy of redacting names defeats the burden Carlson places on
public entities to presumptively disclose information unless a specific
privacy interest outweighs that disclosure. As Smith contended at oral
argument, automatic redaction can potentially create a “black box” of
information that might render government activity impervious to public
scrutiny. And, in any event, the names of the employees were never at issue
in Scottsdale Unified, which posed the question whether the birth dates of
public school substitute teachers may be withheld consistent with public
records laws, when those dates were available from other sources. 191 Ariz.
297, ¶¶ 1, 4, 8, 10. We identify no analogous privacy interest involved here,
where the shooter engaged in a highly public altercation that attracted
multiple witnesses and, as the trial court noted, resulted “in injury,
hospitalization, and police intervention.”

¶19 As the trial court reasoned, “Carlson requires more than
reliance on generalities.” The Town’s abstract claims that “stigma” might
“attach to being involved in potentially criminal but uncharged conduct” is
“too abstract to overcome the presumption of disclosure that accompanies”
our public record laws. Although the shooter may prefer not to have his
identity disclosed, the Town’s speculation as to the shooter’s preference
does not create a cognizable privacy interest that overcomes the “statutory
policy favoring disclosure.” Carlson, 141 Ariz. at 491. Further, in its
speculation as to the generalized potential harms that might befall a private
citizen whose public actions are disclosed through a public records request,
the Town fails to identify any “specific, material harm” that “will result
from disclosure.” Mitchell, 142 Ariz. at 335.

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¶20 The Town has suggested that Smith should have sought the
name of the shooter by filing a John Doe civil case and requesting the name
via subpoena. “[P]ublic records law was not intended to serve as a private
discovery tool.” London v. Broderick, 206 Ariz. 490, ¶¶ 16-17 (2003)
(exempting from public disclosure employment file sought “solely as
discovery in the pending disciplinary proceedings”). But, “[a] person’s
right to public records under [§ 39-121] is not conditioned on his or her
showing, or a court finding, that the documents are relevant to anything.”
Hodai v. City of Tucson, 239 Ariz. 34, ¶ 7 (App. 2016) (first alteration added,
second alteration in Hodai) (quoting Bolm v. Custodian of Recs. of Tucson Police
Dep’t, 193 Ariz. 35, ¶ 10 (App. 1998)). “The fact that the public record exists
is sufficient to create a presumption requiring disclosure.” Id.

¶21 The Town has therefore failed to present a tangible privacy
interest that implicates any “sufficiently weighty reasons to tip the balance
away from the presumption of disclosure.” Broderick, 206 Ariz. 490, ¶ 9. We
affirm the trial court’s grant of relief to Smith on the issue of disclosure.

Attorney Fees

¶22 The Town also argues the trial court abused its discretion in
awarding Smith partial attorney fees. The Town cites its prompt
production of requested (albeit redacted) records prior to litigation, the
court’s finding that the Town acted in good faith in making redactions, and
the Town’s position that the records sufficiently “outline the activities of
the Town and its employees.” The Town also contends, despite the fact that
the court granted each of Smith’s requests in the underlying action, that
Smith did not substantially prevail and therefore Smith was not eligible for
an award of fees.

¶23 The applicability of a fee-shifting statute is a question of law
that we review de novo. Ramsey Air Meds, L.L.C. v. Cutter Aviation, Inc., 198
Ariz. 10, ¶ 12 (App. 2000). Where a party has shown eligibility for a fee
award, a trial court has “broad discretion to award or deny attorney fees
and costs.” Am. C.L. Union of Ariz. v. Ariz. Dep’t of Child Safety (ACLU-AZ),
251 Ariz. 458, ¶ 15 (2021). We review the court’s fee award for an abuse of
that discretion, and will affirm the award if it has any reasonable basis. Id.
¶ 11. “This deferential standard is necessary and appropriate in view of the
court’s superior understanding of the issues involved in the litigation and
the desirability of avoiding frequent appellate review of what is essentially
a factual issue.” Id. ¶ 15.

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¶24 In determining whether Smith was eligible for any fee award,
we start with the text of the statute. Section 39-121.02(B) provides that the
trial “court may award attorney fees and other legal costs that are
reasonably incurred in any action” under the public records statutes “if the
person seeking public records has substantially prevailed.” A party
substantially prevails when, taking into consideration “all of the claims or
requests made by the requesting party,” the party “was more successful
than not in obtaining the requested records, defeating the government’s
denial of access to public records, or securing other relief concerning issues
that were contested before the filing of an action.” ACLU-AZ, 251 Ariz. 458,
¶ 17. In determining whether a party has substantially prevailed, the court
may consider “all of the claims or requests made by the requesting party”
in order to evaluate a party’s “overall success in the litigation” with respect
to “issues that were contested before litigation was initiated.” Id. ¶¶ 17, 26,
28; see also Paradigm DKD Grp., LLC v. Pima Cnty. Assessor, 246 Ariz. 429,
¶¶ 24, 27-28 (App. 2019) (concluding government agency should not be
penalized by requirement to pay fees when it provided records “above and
beyond” original request, and thus vacating fee award insofar as it granted
relief beyond originally contested issues).

¶25 Under this standard, Smith clearly substantially prevailed in
the underlying action. The trial court’s ruling granted Smith all of “the
relief sought” in his petition to obtain the unredacted public records. He
has, therefore, been “more successful than not in obtaining” the contested
material—namely, the unredacted police records. ACLU-AZ, 251 Ariz. 458,
¶ 1.

¶26 The Town nonetheless urges us to find error in the trial court’s
award of fees, in light of that court’s finding that the Town acted in good
faith in refusing to proffer the unredacted records. Although good faith, or
lack thereof, may be relevant to determining eligibility of an award of fees
as a sanction, it is not relevant to eligibility here. As the Town notes, “The
only substantive question before the trial court was whether the redactions
of the names and images of involved parties complied with the public
records law.” The court decided this issue fully in Smith’s favor and
awarded him all relief he requested. The fact that the Town timely
produced redacted records does not diminish the fact that Smith was
compelled to initiate litigation to obtain the precise unredacted information
he sought through his records request. Nor does the Town’s good-faith
belief that it had correctly balanced the privacy interests at stake obviate the
litigation. As the Town notes, “[T]here was a genuine and very limited legal
dispute regarding redactions to private citizen’s information within the
records.” Although Smith’s complaint made other factual allegations that

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ultimately remained unresolved, the only legal issue before the court
concerned the Town’s limited redactions. It was well within the court’s
discretion to award fees in these circumstances.

¶27 The determination of what fee award is reasonable is also
within the sound discretion of the trial court. See Hodai, 239 Ariz. 34, ¶ 41.
The court reviewed Smith’s application for fees, reduced the number of
hours attributable to the “time spent connected to the dispute,” and
approved of the hourly charges. Because the court’s fee determination is
based on a reasonable interpretation of whether the billed activities were
connected to the public records request, we affirm the award.

Disposition

¶28 We affirm the trial court’s rulings. Smith requests his attorney
fees and costs on appeal. Because he has substantially prevailed on appeal,
in our discretion, we award Smith his reasonable attorney fees on appeal,
upon his compliance with Rule 21, Ariz. R. Civ. App. P., as well as his
taxable costs. See §§ 12-341, 39-121.02(B).

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