Nina Alley v. Pima County, Pima County Attorney's Office, Laura Conover

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

NINA ALLEY, AS GUARDIAN AND CONSERVATOR FOR AND ON BEHALF OF LOUIS
TAYLOR, A SINGLE MAN,
Plaintiff/Appellant,

v.

PIMA COUNTY,
Defendant/Appellee.

No. 2 CA-CV 2025-0185
Filed June 16, 2026

Appeal from the Superior Court in Pima County
No. C20224158
The Honorable Cynthia T. Kuhn, Judge

AFFIRMED IN PART; VACATED IN PART AND REMANDED

COUNSEL

Miller, Pitt, Feldman, & McAnally P.C., Tucson
By Stanley G. Feldman, Peter Timoleon Limperis, Timothy P. Stackhouse,
and Max W. Larnerd

and

The Leader Law Firm P.C., Tucson
By John P. Leader
Counsel for Plaintiff/Appellant
 ALLEY v. PIMA COUNTY
Opinion of the Court

Struck Love Acedo PLC, Chandler
By Daniel P. Struck and Nicholas D. Acedo
Counsel for Defendant/Appellee

OPINION

Judge O’Neil authored the opinion of the Court, in which Judge Eckerstrom
and Judge Eppich concurred.

O’ N E I L, Judge:

¶1 This appeal concerns Louis Taylor’s1 request to Pima County
for public records related to an executive session. The County denied his
request, asserting the records were confidential under A.R.S. § 38-431.03(B).
Taylor then filed a complaint alleging that the County had violated his right
to access public records and later sought partial summary judgment on the
County’s confidentiality defense. The superior court denied that motion
and ultimately dismissed the case with prejudice. Taylor challenges the
court’s denial of partial summary judgment on the confidentiality issue, as
well as its denial of his subsequent related motions, including a request for
discovery concerning the names of the people who attended the executive
session. This appeal primarily requires us to determine whether Taylor
made the requisite showing on summary judgment. We conclude he fell
short of doing so because the facts do not support a reasonable inference
that the executive session violated open meeting law. We thus affirm the
court’s order denying partial summary judgment. However, we vacate in
part the court’s denial of Taylor’s motion for discovery because the court
incorrectly determined that the identities of executive session attendees
were confidential.

Background

¶2 Taylor made the public records request at issue in this case
while he and the County were involved in a civil lawsuit in federal court.
Although the details are not relevant here, the federal case involved a claim
of damages for wrongful imprisonment based on Taylor’s 1972 criminal
convictions in Arizona state court for twenty-eight counts of felony murder.

1Nina Alley is Taylor’s guardian and conservator.

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Opinion of the Court

Taylor v. County of Pima, 913 F.3d 930, 932-33 (9th Cir. 2019). The County
was represented in that case by a private attorney.

¶3 In early June 2022, the elected Pima County Attorney
indicated she was considering a motion to vacate Taylor’s convictions. In
response to a request that the County Board of Supervisors “take a
position” on the criminal matter, the county administrator expressed an
intent to place “an item on the executive session agenda on June 7 to brief
the [B]oard.” It is undisputed on appeal that no executive session was held
on that date, that the Board instead held an executive session on August 2,
2022, related to the federal case, and that the Pima County Attorney’s Office
(PCAO) announced the next day, August 3, that it would not file a motion
to vacate the judgment in Taylor’s criminal case.

¶4 Shortly afterward, Taylor asked the Pima County Clerk for
“all minutes” of a “public meeting held on August 2, 2022.” He also sought
the “names and title of all persons present at the August 2, 2022 executive
session,” as well as all records from that session concerning legal action that
the Board had voted on and concerning any topic that went beyond the
scope of the session’s purpose as articulated in the notice of the executive
session. That notice had stated that, “[p]ursuant to A.R.S. § 38-431.03(A)(3)
and (4),” the purpose of the executive session was to obtain “legal advice
and direction regarding” Taylor’s federal lawsuit. In response to Taylor’s
request, the County sent links to records of the public meeting but asserted
that, “[p]ursuant to A.R.S. § 38-431.03(B), executive session minutes are
confidential, which includes the attendee list, since it is maintained as part
of the executive session minutes.”

¶5 Taylor filed a statutory special action complaint in superior
court asserting the County had violated his statutory right to access public
records.2 See A.R.S. § 39-121. In response, the County maintained that the
records were confidential under § 38-431.03.

¶6 Taylor then moved for partial summary judgment on the
issue of whether the records he sought were confidential under
§ 38-431.03(B). Relying on the list of attendees as stated in the minutes from
the public portion of the meeting, he noted that the “only attorney present”
was a deputy county attorney from the PCAO. He argued that she “could

2Taylor’scomplaint also listed the PCAO and the Pima County
Attorney as defendants, but his allegations against those defendants
involved a separate public records request not at issue in this appeal.

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Opinion of the Court

not have provided ‘legal advice or direction’” regarding the federal civil
lawsuit because the PCAO did not represent the County in that lawsuit. On
this basis, he inferred that the discussion at the executive session must have
gone beyond the scope of the purpose as stated in the notice. He requested
that the superior court order the County to produce all records relating to
the “improperly noticed” session. And, regardless of whether the meeting
was properly noticed, he asserted that the list of attendees at the executive
session and the records relating to the Board’s vote for legal action were not
confidential. Specifically, he pointed to the Board’s vote, memorialized in
the minutes, to “proceed as discussed in Executive Session.”

¶7 In response, the County asserted that Taylor had failed to
meet his burden to prevail on summary judgment because he merely
“speculate[d]” that the deputy county attorney was the only attorney
present at the executive session. In the alternative, the County stated that,
if the superior court “believe[d] that the burden ha[d] sufficiently shifted to
Pima County to create a factual dispute, [it] request[ed] the opportunity to
submit ex parte certain confidential information to the Court for an in
camera review.” The County also cross-moved for summary judgment in
its favor on the issue of the list of attendees on the ground that the list is
confidential “as a matter of law.”

¶8 The superior court denied Taylor’s motion for partial
summary judgment, concluding he had “not met his burden that the
executive session privilege (pursuant to § 38-431.03 (B)) and attorney/client
privilege, are not applicable.” It also denied the County’s cross-motion
regarding the “identity of the attendees,” reasoning that the County “is
required to produce public records identifying executive session attendees
if such records exist other than in the Executive Session Minutes.” The court
then denied Taylor’s subsequent motion for reconsideration.

¶9 Taylor also requested a ruling on his motion for partial
summary judgment “regarding the legal action taken by the County
following the August 2, 2022 Executive Session.” The superior court denied
his request, reasoning that it had decided in the order denying partial
summary judgment that the executive session was held “to secure legal
advice,” which is not “legal action.” Taylor additionally filed a motion to
conduct discovery, which the court also denied. The court directed the
County to file a motion for summary judgment if appropriate.

¶10 Over eight months later, absent any motion by the County,
Taylor filed a motion to dismiss with prejudice pursuant to Rule 41(a)(2),

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Ariz. R. Civ. P. The superior court granted the motion. This appeal
followed.

Jurisdiction

¶11 We may exercise jurisdiction over an appeal only if taken by
a “party aggrieved by a judgment.” Ariz. R. Civ. App. P. 1(d); Harris v.
Cochise Health Sys., 215 Ariz. 344, ¶ 8 (App. 2007). This often precludes our
review of claims that a plaintiff has voluntarily dismissed, even when a
plaintiff believes the superior court’s rulings have “unduly limited” its
ability to proceed. Harris, 215 Ariz. 344, ¶¶ 12-14 & 12. “When the dismissal
is with prejudice, however, plaintiffs have been allowed, in limited
circumstances, to appeal from a voluntary dismissal when the plaintiffs’
‘solicitation of the formal dismissal was designed only to expedite review
of [a prior] order which had in effect dismissed [plaintiffs’] complaint.’”
Empire Volkswagen Inc. v. World-Wide Volkswagen Corp., 814 F.2d 90, 94 (2d
Cir. 1987) (alterations in Empire Volkswagen Inc.) (quoting Raceway Props.,
Inc. v. Emprise Corp., 613 F.2d 656, 657 (6th Cir. 1980)) (reasoning adopted
by Harris, 215 Ariz. 344, ¶¶ 12, 15).

¶12 Taylor’s complaint is a statutory special action seeking
records. Taylor could obtain the specific records he sought only by
overcoming the County’s confidentiality defense. To do so, Taylor needed
to show that the County had violated open meeting law. As we explain
more fully below, we affirm the superior court’s denial of partial summary
judgment because Taylor failed to create a reasonable inference of such a
violation. If Taylor could not establish even a reasonable inference of an
open meeting law violation with the evidence available to him at the
summary judgment stage, then he certainly would not be able to
demonstrate the same violation with the same evidence at a trial.3

3The standard on summary judgment is different from the standard

at trial. Compare Ariz. R. Civ. P. 56(a) (summary judgment appropriate if
“there is no genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law”), with Am. Pepper Supply Co. v. Fed.
Ins. Co., 208 Ariz. 307, ¶ 11 (2004) (“[C]ivil claims generally need be
established only by a preponderance of the evidence.”). But the threshold
question of whether Taylor had drawn a reasonable inference of an open
meeting law violation would have been no less dispositive at trial than it
was on summary judgment.

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Opinion of the Court

¶13 Taylor, therefore, urged the superior court that it should
either permit discovery “or enter a final judgment in [the County]’s favor,”
because without discovery, he could “present no evidence or argument that
was not raised” on summary judgment. The court noted that it had
previously denied the County’s cross-motion for summary judgment
“because the County must produce public records identifying executive
session attendees if such records exist other than in the Executive Session
Minutes,” but concluded that “no non-privileged documents exist.” The
court nonetheless declined to enter a judgment for the County “without a
proper motion.” Although the County did not act on the court’s invitation
to file such a motion, given Taylor’s inability to meet his initial burden to
create a reasonable inference of an open meeting law violation, the court
had already effectively decided the relevant question for trial in denying
summary judgment. Taylor could not overcome the County’s
confidentiality defense with the evidence available, and the court’s denial
of Taylor’s discovery request meant no further evidence would be
forthcoming.

¶14 We conclude Taylor’s appeal falls within that limited
category of cases where a voluntary dismissal was merely sought to enable
review of an order that had effectively disposed of Taylor’s claim. See
Empire Volkswagen Inc., 814 F.2d at 94. We have jurisdiction.

Summary Judgment

¶15 Although we typically do not review the denial of summary
judgment, that principle does not apply here because there was no trial on
the merits. John C. Lincoln Hosp. & Health Corp. v. Maricopa County, 208 Ariz.
532, ¶ 19 (App. 2004). We review the denial de novo. See Phx. Union High
Sch. Dist. No. 210 v. Sinclair, 260 Ariz. 115, ¶ 7, 572 P.3d 80, 83 (2025). “The
court shall grant summary judgment if the moving party shows that there
is no genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a).

¶16 Generally, “[a]ll meetings of any public body shall be public
meetings and all persons so desiring shall be allowed to attend and listen
to the deliberations and proceedings.” A.R.S. § 38-431.01(A). A public
body may, however, hold a closed-door executive session for statutorily
authorized purposes, including obtaining legal advice. § 38-431.03(A)(3).
Minutes and discussions from these meetings “shall be kept confidential.”
§ 38-431.03(B). But confidentiality applies only if “the meeting in question
fulfill[s] the statutory prescriptions for an executive session.” State v.
Murphy, 131 Ariz. 354, 356 (App. 1982). And the public body is not

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permitted to “discuss any matter in an executive session that is not
described in the notice of the executive session.” § 38-431.03(E); Fisher v.
Maricopa Cnty. Stadium Dist., 185 Ariz. 116, 124 (App. 1995) (public body
“should be held strictly to its stated purpose”). If a plaintiff alleges “facts
from which a reasonable inference may be drawn supporting an Open
Meeting Law violation, the burden shifts to the defendant to prove that an
affirmative defense or exemption should permit a closed-door executive
session.” Fisher, 185 Ariz. at 122; see also Tanque Verde Unified Sch. Dist. No.
13 of Pima Cnty. v. Bernini, 206 Ariz. 200, ¶ 13 (App. 2003) (“public body
must prove that the session was properly conducted”).4

¶17 Our analysis in this appeal depends in significant part on
whether Taylor successfully shifted the burden to the County for the
purpose of his summary judgment motion. Taylor asserts he did. He
argues that he alleged facts sufficient to reasonably infer the executive
session was improperly noticed. He also asserts the superior court erred in
placing the burden on him to prove improper notice.

¶18 This burden-shifting framework shapes the analysis on
summary judgment. When the party moving for summary judgment has
the burden of proof, it must “demonstrate[e] the absence of a genuine issue
of material fact as to each element of its claim and each defense.” Vig v. Nix
Project II P’ship, 221 Ariz. 393, ¶ 11 (App. 2009). In contrast, when the party
opposing summary judgment has the burden of proof, the moving party
need not “present evidence disproving the non-moving party’s claim or
defense.” Nat’l Bank of Ariz. v. Thruston, 218 Ariz. 112, ¶ 22 (App. 2008).
Rather, the moving party is only required to “‘point out by specific
reference to the relevant discovery that no evidence exist[s] to support an
essential element of the [non-moving party’s] claim’ or defense.” Id.
(alterations in Thruston) (quoting Orme Sch. v. Reeves, 166 Ariz. 301, 310
(1990)).

4The County asserts this burden-shifting framework does not apply

here because Taylor made his claim under public records law, not open
meeting law. Compare A.R.S. §§ 38-431 to 38-431.09, with A.R.S. §§ 39-101 to
39-171. We reject this argument. In Fisher, in shifting the burden to a public
body based on a challenge under open meeting law, we noted that open
meeting law cases are “analogous” to public records law cases, both of
which may require the public body to demonstrate why “records should
not be made public.” 185 Ariz. at 121-22; see, e.g., Cox Ariz. Publ’ns, Inc. v.
Collins, 175 Ariz. 11, 14 (1993).

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¶19 To shift the burden, Taylor needed to create a reasonable
inference that there had been an open meeting law violation. Fisher, 185
Ariz. at 122. In attempting to do so, Taylor pointed to the fact that the notice
of the executive session stated that its purpose was for the Board to obtain
advice from its attorney in Taylor’s federal lawsuit. He noted that the
attendee list from the public session minutes named a deputy county
attorney but did not identify any other lawyer who might have been
present to give advice regarding the federal case. The listed deputy county
attorney did not represent the County in the federal lawsuit, so Taylor
inferred that the executive session must have exceeded the scope of the
notice, perhaps addressing issues related to his Arizona state criminal case
instead. He argued this inference was corroborated by both the county
administrator’s expressed intent to hold an executive session on June 7 and
the timing of the PCAO’s announcement that no motion to vacate Taylor’s
convictions would be filed.

¶20 On appeal, Taylor maintains that these facts “were more than
sufficient to create the inference that the Executive Session was not limited
to discussion of” his federal lawsuit. His argument relies on the inference,
drawn from the public meeting minutes, that the deputy county attorney
participated in the executive session while no attorney involved in the
federal case did so. If true, this would suggest that the Board obtained
advice regarding the criminal case during the executive session, not the
federal case as had been indicated in the notice of the executive session.
And if the executive session was not kept to the purpose stated in the notice,
then it could not properly remain confidential. § 38-431.03(E); Fisher, 185
Ariz. at 122-24. On the other hand, if Taylor has not drawn a reasonable
inference concerning the presence of the attorneys at the executive session,
his argument does not suggest an open meeting law violation.

¶21 The public session minutes do not reasonably suggest either
the participation of the deputy county attorney or the absence of an
attorney for the federal case during the executive session. The minutes
begin with a “roll call” identifying the members of the Board and several
County officials present for the meeting, including the deputy county
attorney. Other participants at the meeting are not named in the roll call
but are instead identified only in the context of the relevant agenda item.
Taylor has offered no reason to expect that the attorney for the federal
lawsuit, if present, would be identified in the minutes from the public
session. To the contrary, the presence of a private attorney presumably
would not be noted in the roll call of county officials, nor would the
attorney’s name be identified in the context of any of the other agenda items

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in which the attorney did not participate. It would be identified, if
anywhere, in the executive session minutes. There is, therefore, nothing to
infer from the absence in the minutes of the name of an attorney associated
with the federal case.5

¶22 Similarly, the presence of the deputy county attorney during
the public session does not suggest either her presence at or her
participation in the executive session. The public session minutes include
numerous agenda items in which the deputy county attorney was not a
noted participant. The presence of county officials during a general roll call
at the beginning of the public meeting does not suggest that any one of
those officials participated in every individual agenda item, much less that
they attended a confidential executive session.6

¶23 The PCAO’s decision not to file a motion to vacate Taylor’s
convictions also does not suggest that the Board addressed matters beyond
the scope of the notice during the executive session, especially in the
absence of any reason to believe that an attorney involved in the criminal
case attended the executive session. To the extent the timing of the PCAO’s
announcement raised any question, the County Attorney testified in her
deposition that she had made her decision a month earlier. Moreover, the
mere possibility that the Board’s discussion might have touched on the
criminal case in some way would not indicate that the session went beyond

5At oral argument before this court, counsel for the County advised

that he had been representing the County in the federal case at the time of
the executive session and attended the public meeting. We are puzzled by
the County’s concession that it did not introduce these facts before the
superior court, since they would strike a seemingly decisive blow against
the purported inference that no attorney in the federal case was present to
attend the executive session. Beyond our puzzlement on that point, we are
troubled that counsel would raise so crucial a fact for the first time at oral
argument when that fact does not appear in the record on appeal. Our
review is confined to the record. Dynometrics Inc. v. Ariz. Dep’t of Econ. Sec.,
257 Ariz. 283, ¶ 34 (App. 2024). We review accordingly.
6In her deposition, the County Attorney expressed her
“understanding” that the deputy county attorney had not been present for
the portion of the executive session addressing Taylor’s federal lawsuit. We
need not rely on her statement because Taylor has identified no facts from
which to reasonably infer that any representative of the PCAO attended the
executive session.

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its noticed purpose. As Taylor acknowledged at oral argument, it stands to
reason that legal advice regarding the federal lawsuit might necessarily
address the impact of new developments in the state criminal case,
including the implications of a possible motion to vacate Taylor’s
convictions.

¶24 Because Taylor fell short of raising a reasonable inference that
the executive session was improperly noticed, he failed to carry his burden
on summary judgment.7 See Ariz. R. Civ. P. 56(a); Jones v. Respect the Will of
the People, 254 Ariz. 73, ¶ 37 (App. 2022); Vig, 221 Ariz. 393, ¶ 11. Thus, the
superior court did not err in denying his motion for partial summary
judgment.

¶25 Taylor also asserts that the superior court erred in concluding,
in response to his request for a ruling, that there was no legal action subject
to disclosure because the executive session was held to obtain legal advice.
He asserts that the Board’s vote to “proceed as discussed in Executive
Session” necessarily indicates that legal action was discussed during the
session and that such discussion is subject to public disclosure.

¶26 Legal action by the Board requires a public vote.
§ 38-431.03(D). “Legal action involving a final vote or decision shall not be
taken at an executive session, except that the public body may instruct its
attorneys or representatives as provided in” § 38-431.03(A)(4), (5), and (7).
Id. Taylor acknowledges these “exceptions to public disclosure of legal
action,” but he asserts none of the exceptions apply. He argues that
§ 38-431.03(A)(4) is limited to “contract discussions” and that his federal
lawsuit does not involve a contract. He further argues that
§ 38-431.03(A)(3), which permits an executive session for the purpose of
seeking legal advice but does not provide an exception to the requirement
that legal action be taken publicly, is “the only purpose for which the
session could have been held.”

¶27 Section 38-431.03(A)(4) permits a public body to “instruct its
attorneys regarding the public body’s position regarding contracts that are
the subject of negotiations, in pending or contemplated litigation or in

7We need not address Taylor’s argument that the superior court

erred in giving weight to counsel’s representations that the executive
session was consistent with the notice. Nor do we reach Taylor’s arguments
concerning attorney-client privilege because he did not seek summary
judgment on that issue.

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settlement discussions conducted in order to avoid or resolve litigation.”
This language lists three categories of instruction a public body may give
its attorneys “regarding the public body’s position” in an executive session,
each of which is exempted from § 38-431.03(D)’s requirement of a public
vote. Taylor reads the statute as identifying three circumstances in which
a public body may discuss, consult, and instruct an attorney as to its
“position regarding contracts,” concluding that each listed circumstance
modifies the word “contracts.”

¶28 This court has previously read the subsection differently. We
have understood the listed categories in § 38-431.03(A)(4) as modifying the
word “position,” such that a public body may give instruction regarding its
“position regarding contracts that are the subject of negotiations,” its
“position . . . in pending or contemplated litigation,” or its “position . . . in
settlement discussions.” See Desert Mountain Energy Corp. v. City of Flagstaff,
259 Ariz. 346, ¶ 24 (App. 2025). We continue to regard this as the more
reasonable interpretation. If Taylor’s interpretation were correct, the
second and third items in the list would refer to “contracts . . . in pending
or contemplated litigation” and “contracts . . . in settlement discussions.”
While we do not generally regard contracts as participating in litigation or
settlement discussions, public bodies do take positions in them. See
Schilling v. Embree, 118 Ariz. 236, 238 (App. 1977) (favoring an
“interpretation which is reasonable and avoids . . . absurdities”).8

¶29 The County noticed the executive session under
§ 38-431.03(A)(4), which allowed it to discuss and instruct its attorney
regarding its position in the ongoing federal civil lawsuit. § 38-431.03(A)(4),
(D). The “final and collective decision” authorizing legal action was public,

8Taylor asserts that the County waived its arguments concerning

§ 38-431.03(A)(4) because it failed to challenge his interpretation of the
statute below and did not challenge the superior court’s ruling that the
executive session was held to obtain legal advice. But the County did
dispute his interpretation, and we review the meaning of statutes de novo
regardless. See City of Tucson v. Pima County, 190 Ariz. 385, 386 (App. 1997).
Moreover, “[w]e will affirm the trial court’s decision if it is correct for any
reason, even if that reason was not considered by the trial court.” Glaze v.
Marcus, 151 Ariz. 538, 540 (App. 1986).

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but the County’s litigation position itself was confidential. See Desert
Mountain Energy Corp., 259 Ariz. 346, ¶ 25; see also § 38-431.03(B).9

Discovery

¶30 Taylor also argues that the superior court erred under
Arizona’s special action rules in denying his request for discovery of the
names of executive session attendees. In that request, Taylor sought leave
to serve on the County both a request for production of a redacted version
of the executive session minutes and an interrogatory requesting the names
of the persons present at the executive session. Although the court had
previously determined that “the County is required to produce public
records identifying executive session attendees if such records exist other
than in the Executive Session Minutes,” the court denied both of Taylor’s
discovery requests, reasoning that “the requested information (attendees)
is privileged.”

¶31 At the time of the superior court’s ruling, the special action
rules provided that if “a triable issue of fact is raised in” a special action, “it
shall be tried subject to special orders concerning discovery.”10 Ariz. Sup.
Ct. Order Promulgating “Rules of Procedure for Special Actions” Rule 4
(Aug. 1, 1969). Courts have significant discretion in deciding discovery
requests in special actions, and “only in rare situations will discovery be
justified in special action proceedings in the superior court.” Lewis v. Ariz.
Dep’t of Econ. Sec., 186 Ariz. 610, 616 (App. 1996). An abuse of discretion
generally occurs when a court commits a legal error in reaching a

9Taylor’s reply appears to go further, arguing that the description of

the vote was inadequate even if an exception to the requirement for a public
vote applied. Because this issue was raised for the first time in reply, and
because it is unclear how an inadequate description of the public vote
would affect the outcome on summary judgment, we need not address here
the detail with which a legal action—exempt from public disclosure—must
be described during the public vote authorizing such action. See Camelback
Contractors, Inc. v. Indus. Comm’n, 125 Ariz. 205, 208 (App. 1980) (“Raising
substantive issues for the first time in a reply brief authorizes a reviewing
court to disregard the issue.”).
10The current version of the rule, Rule 7(g), Ariz. R. P. Spec. Act.,

similarly provides that “[d]iscovery is not routinely permitted in special
actions” but that “[i]f a special action raises a material issue of fact, the court
may issue special orders concerning discovery.”

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discretionary decision or makes its decision without evidentiary support.
Files v. Bernal, 200 Ariz. 64, ¶ 2 (App. 2001).

¶32 The superior court was within its discretion to reject Taylor’s
request for executive session minutes, redacted or otherwise. Section
38-431.03(B) expressly states that “[m]inutes of and discussions made at
executive sessions shall be kept confidential,” subject only to exceptions not
pertinent to Taylor’s request. Based on the same statutory language,
however, the court incorrectly determined that the identity of attendees at
an executive session is also confidential. Confidentiality under
§ 38-431.03(B) is extended only to “[m]inutes” and “discussions.”
Answering an interrogatory about attendance at an executive session need
not require disclosure of confidential minutes, and attendance is not a
discussion.

¶33 The general principle of our open meeting law is that
government proceedings must be open and visible to the public. Desert
Mountain Energy Corp., 259 Ariz. 346, ¶¶ 21-22. This principle is subject only
to narrow statutory exceptions allowing for necessary confidentiality in
specific areas. Id. We cannot extend the confidentiality established in
§ 38-431.03(B) beyond its plainly stated terms, and those terms do not make
attendance at an executive session confidential.

¶34 Nor is there any apparent reason why attendance should be
kept confidential. In fact, the expected and permissible attendees at an
executive session are largely dictated by statute. An executive session
requires “a quorum of members of a public body.” A.R.S. § 38-431(2).
Other “officers, appointees and employees” and the auditor general may
attend under statutorily defined circumstances. Id. Otherwise, “only
individuals whose presence is reasonably necessary in order for the public
body to carry out its executive session responsibilities may attend the
executive session.” Id. Because the public body must also describe the
purpose of an executive session when giving the public notice of the
meeting, the attendees will largely be known ahead of time. § 38-431.03(E).
There can be no reason why the same information should become
confidential after the meeting ends. No statute shields from public
knowledge an executive session attendee’s physical entry into or presence
within a meeting room, and, as a practical matter, the attendees at an
executive session are rarely a mystery to anyone who attends a public
meeting. When a public body is scheduled to go into executive session
during or at the conclusion of a public meeting, presumably anyone curious
about the attendees can simply watch them walk through the door or note

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that they have remained behind when all others have left the public portion
of the meeting.

¶35 We conclude the superior court erred to the extent it
determined that mere attendance at the executive session was confidential
information. This does not, however, mean the court was obliged to grant
Taylor’s request for leave to serve an interrogatory. As noted, discovery in
a special action is a matter for the court’s broad discretion. Lewis, 186 Ariz.
at 615-16. It is also rare, permissible only when there is a triable issue of
fact. Id. Thus, although we vacate the portion of the court’s ruling denying
Taylor’s request for leave to serve the interrogatory, we remand for the
court to determine, in its discretion, whether Taylor’s action has raised a
material issue of fact and, if so, whether a special order allowing an
interrogatory concerning the identities of the executive session attendees is
appropriate under the circumstances.

Disposition

¶36 We affirm the superior court’s denial of partial summary
judgment and all related rulings, except that we vacate in part the denial of
Taylor’s request for discovery and the subsequent dismissal of the action.
We remand for further proceedings consistent with this decision. Taylor
seeks attorney fees pursuant to A.R.S. § 39-121.02. We deny that request
because we cannot say, at this stage, that Taylor is the prevailing party.

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