Griffis v. Pinal County

SUPREME COURT OF ARIZONA
EN BANC

STANLEY GRIFFIS, ) Arizona Supreme Court
) No. CV-06-0312-PR
Plaintiff/Appellant, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-CV 06-0052
PINAL COUNTY, )
) Pinal County
Defendant/Appellee, ) Superior Court
) No. CV2006-00147
)
and )
)
PHOENIX NEWSPAPERS, INC., an ) O P I N I O N
Arizona corporation, )
)
Intervenor/Appellee. )
)
__________________________________)

Appeal from the Superior Court in Pinal County
The Honorable Robert Duber

REVERSED; REMANDED
________________________________________________________________

Opinion of the Court of Appeals, Division Two
213 Ariz. 300, 141 P. 3d 780 (2006)

VACATED
________________________________________________________________

FENNEMORE CRAIG PC Phoenix
By Timothy Berg
Janice Procter-Murphy
Theresa Dwyer
Attorneys for Stanley Griffis

ROBERT CARTER OLSON, PINAL COUNTY ATTORNEY Florence
By Chris M. Roll, Deputy County Attorney
Allen C. McVey, Deputy County Attorney
Attorneys for Pinal County
STEPTOE & JOHNSON LLP Phoenix
By David Jeremy Bodney
Peter S. Kozinets
Chris Moeser
Attorneys for Phoenix Newspapers, Inc.

MAYNARD CRONIN ERICKSON CURRAN & SPARKS PLC Phoenix
By Daniel D. Maynard
Douglas C. Erickson

And

THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS Arlington, VA
By Lucy A. Dalglish
Loren A. Cochran

And

FLETCHER HEALD & HILDRETH PLC Arlington, VA
By Kevin M. Goldberg

And

THE ASSOCIATED PRESS New York, NY
By David H. Tomlin

And

NEWSPAPER ASSOCIATION OF AMERICA Arlington, VA
By Rene P. Milam

And

BAKER & HOSTETLER LLP Washington, DC
By Bruce W. Sanford
Bruce D. Brown
Laurie A. Babinski

And

WILEY REIN LLP Washington, DC
By Kathleen A. Kirby
Attorneys for Amici Curiae The Reporters Committee for Freedom
of the Press, American Society of Newspaper Editors, The
Associated Press, Newspaper Association of America, Society of
Professional Journalists, and Radio and Television News
Directors Association

2
M c G R E G O R, Chief Justice

¶1 We granted review to consider whether purely personal

e-mails generated or maintained on a government e-mail system

are, as a matter of law, public records under Arizona’s public

records law, Arizona Revised Statutes (A.R.S.) sections 39-121

to 39-121.03 (2001 & Supp. 2006).1 We hold that such e-mails do

not necessarily qualify as public records. We further hold that

when a government entity withholds documents generated or

maintained on a government-owned computer system on the grounds

that the documents are personal, the requesting party may ask

the trial court to perform an in camera inspection to determine

whether the documents fall within the public records law.

I.

¶2 In late 2005, the Pinal County Sheriff’s Office began

an investigation of then-County Manager Stanley Griffis after

learning of Griffis’ unauthorized purchase of sniper rifles and

other equipment with county funds.2 Phoenix Newspapers, Inc.

1
This case raises neither the issue of whether Pinal County,
as the owner of the computer system, can access an employee’s e-
mails nor the issue of access to a government employee’s e-mails
when excessive e-mail use is the reason for termination. Cf.
Tiberino v. Spokane County, 13 P.3d 1104, 1108 (Wash. Ct. App.
2000) (holding that personal e-mails may become public records
when excessive use of personal e-mail is the reason for an
employee’s discharge and the e-mails are printed for use in a
wrongful termination suit against the government agency).
2
Griffis was suspended from his position in December 2005
and retired shortly thereafter. In January 2007, he entered into
3
(PNI) filed a public records request with Pinal County (the

County) pursuant to A.R.S. §§ 39-121 to -121.03, seeking release

of all e-mails sent to or received by Griffis on the County’s e-

mail system from October 1 to December 2, 2005. The County

released 706 e-mails, but withheld others it and Griffis

considered personal or confidential. After PNI threatened to

sue, the County agreed to release the previously withheld e-

mails and notified Griffis of its decision.

¶3 Griffis obtained a preliminary injunction blocking

release of e-mails that both he and the County initially had

agreed were personal. PNI moved to intervene and dissolve the

injunction, and the County joined this motion. The County then

prepared a log identifying each e-mail subject to the injunction3

and allowed Griffis to redact any personal information before

providing the log to PNI. Griffis chose to disclose

approximately thirty of the e-mails listed in the log.

¶4 The superior court granted PNI’s motion to dissolve

the injunction, ruling that the remaining e-mails should be

disclosed, but giving Griffis the opportunity to redact any

personal information. The superior court noted that “everything

a plea agreement with the State with respect to the criminal
charges filed against him.
3
The log contained the date and time sent, sender,
recipient, subject line, and number of pages for each e-mail.

4
that is on a computer of the Pinal County . . . governmental

entity is presumed to be a public record” and that “any records

generated on a public computer are presumptively open to public

inspection.” Although it found the e-mails to be presumptively

public records, the superior court offered to conduct an in

camera inspection of the disputed e-mails to determine whether

Griffis could establish an expectation of privacy that would

overcome that presumption. Griffis declined and appealed the

decision.

¶5 The court of appeals, relying on Salt River Pima-

Maricopa Indian Community v. Rogers, 168 Ariz. 531, 815 P.2d 900

(1991), reversed the superior court’s judgment, holding that

personal e-mails are not “public records or other matters” under

Arizona’s public records law and, therefore, need not be

disclosed. Griffis v. Pinal County, 213 Ariz. 300, 309 ¶ 33,

311 ¶ 42, 141 P.3d 780, 789, 791 (App. 2006). The court of

appeals, like the superior court, did not review the content of

the disputed e-mails. Id. at 313-14 n.14 ¶ 50, 141 P.3d at 793-

94.

¶6 PNI petitioned for review, arguing that the court of

appeals misapplied Salt River and ignored Arizona’s longstanding

presumption in favor of providing public access to government

records. Alternatively, PNI urges us to remand for an in camera

inspection of the disputed e-mails to determine whether they

5
fall within the scope of the public records law. We have

jurisdiction pursuant to Article 6, Section 5, Clause 3 of the

Arizona Constitution and A.R.S. § 12-120.24 (2003).

II.

¶7 Whether a document is a public record under Arizona’s

public records law presents a question of law, which we review

de novo. See Cox Ariz. Publ’ns, Inc. v. Collins, 175 Ariz. 11,

14, 852 P.2d 1194, 1198 (1993).

A.

¶8 We have set forth the legal principles that control

the issue raised here in previous public records cases. See

Salt River, 168 Ariz. at 537-42, 815 P.2d at 906-11.4 As an

initial matter, Arizona law defines “public records” broadly and

creates a presumption requiring the disclosure of public

documents. See Carlson v. Pima County, 141 Ariz. 487, 489-90,

687 P.2d 1242, 1244-45 (1984). Section 39-121 of the Arizona

Revised Statutes affirms the presumption of openness, stating

that “[p]ublic records and other matters in the custody of any

officer shall be open to inspection by any person at all times

4
PNI attempts to minimize Salt River’s importance in
resolving the issue before us on the grounds that it involves a
unique intersection of state, federal, and tribal law. We
disagree. Although the document at issue in Salt River was a
check distribution list of amounts paid to tribal allottees, 168
Ariz. at 535, 815 P.2d at 904, the principles outlined in that
case apply to all public records disputes.

6
during office hours.” Although the phrase “public records and

other matters” is not expressly defined by statute, A.R.S. § 39-

121.01.B (Supp. 2006) requires that “[a]ll officers and public

bodies shall maintain all records . . . reasonably necessary or

appropriate to maintain an accurate knowledge of their official

activities and of any of their activities which are supported by

monies from the state or any political subdivision of the

state.”5

¶9 In Salt River, this Court articulated three

alternative definitions of public records: A public record is

one “made by a public officer in pursuance of a duty, the

immediate purpose of which is to disseminate information to the

public, or to serve as a memorial of official transactions for

public reference”; a record that is “required to be kept, or

necessary to be kept in the discharge of a duty imposed by law

or directed by law to serve as a memorial and evidence of

something written, said or done”; or any “written record of

transactions of a public officer in his office, which is a

convenient and appropriate method of discharging his duties, and

is kept by him as such, whether required by . . . law or not.”

168 Ariz. at 538-39, 815 P.2d at 907-08 (quoting Mathews v.

5
Because the language of A.R.S. § 39-121.01.B is so broad,
this Court has abandoned any “technical distinction” between
public records and other matters. Carlson, 141 Ariz. at 490,
687 P.2d at 1245.
7
Pyle, 75 Ariz. 76, 78-79, 251 P.2d 893, 895 (1952)).

¶10 The broad definition of public records, however, is

not unlimited. The public records law requires all public

officials to make and maintain records “reasonably necessary to

provide knowledge of all activities they undertake in the

furtherance of their duties.” Carlson, 141 Ariz. at 490, 687

P.2d at 1245 (emphasis added). That definition does not

encompass documents of a purely private or personal nature.

Instead, only those documents having a “substantial nexus” with

a government agency’s activities qualify as public records.6

Salt River, 168 Ariz. at 541, 815 P.2d at 910. “[T]he nature

and purpose of the document” determine its status as a public

record. Id. at 538, 815 P.2d at 907 (quoting Linder v. Eckard,

152 N.W.2d 833, 835 (Iowa 1967)). Determining a document’s

status, therefore, requires a content-driven inquiry.

¶11 Because the nature and purpose of the document

determine its status, mere possession of a document by a public

officer or agency does not by itself make that document a public

record, id., nor does expenditure of public funds in creating

the document, id. at 540-41, 815 P.2d at 909-10. To hold

otherwise would create an absurd result: Every note made on

6
Although not at issue here, “other matters” likewise
includes only public matters. Salt River, 168 Ariz. at 539, 815
P.2d at 908.

8
government-owned paper, located in a government office, written

with a government-owned pen, or composed on a government-owned

computer would presumably be a public record. Under that

analysis, a grocery list written by a government employee while

at work, a communication to schedule a family dinner, or a

child’s report card stored in a desk drawer in a government

employee’s office would be subject to disclosure. The public

records law was never intended to encompass such documents; the

purpose of the law is to open government activity to public

scrutiny, not to disclose information about private citizens.

See id.; accord State v. City of Clearwater, 863 So. 2d 149, 154

(Fla. 2003) (noting the absurdity of classifying household bills

or notes about personal conversations as public records simply

because they are located in a government office); cf. Bureau of

Nat’l Affairs, Inc. v. United States Dep’t of Justice, 742 F.2d

1484, 1486 (D.C. Cir. 1984) (holding that personal appointment

materials, such as calendars and daily agendas, are not agency

records under the Freedom of Information Act, 5 U.S.C. § 552

(2006)).

¶12 Although the public records law creates a strong

presumption in favor of disclosure, that presumption applies

only when a document first qualifies as a public record. To

apply a presumption of disclosure when a question exists as to

the nature of the document is inappropriate: The initial inquiry

9
must be whether the document is subject to the statute. Salt

River, 168 Ariz. at 536, 815 P.2d at 905. The reason for this

requirement is clear: Disclosure of purely private documents

does nothing to advance the purposes underlying the public

records law. The contents of purely private documents shed no

light on how the government is conducting its business or

spending taxpayer money.

¶13 Determining whether the public records law requires

disclosure, then, involves a two-step process. When the facts

of a particular case “raise a substantial question as to the

threshold determination of whether the document is subject to

the statute,” the court must first determine whether that

document is a public record. Id. If a document falls within

the scope of the public records statute, then the presumption

favoring disclosure applies and, when necessary, the court can

perform a balancing test to determine whether privacy,

confidentiality, or the best interests of the state outweigh the

policy in favor of disclosure.7 E.g., Carlson, 141 Ariz. at 490-

91, 687 P.2d at 1245-46.

7
Most public records cases concern only the interest-
balancing step because the documents at issue are clearly public
records. See, e.g., Scottsdale Unified Sch. Dist. No. 48 v.
KPNX Broad. Co., 191 Ariz. 297, 955 P.2d 534 (1998); Cox Ariz.
Publ’ns, 175 Ariz. 11, 852 P.2d 1194; Carlson, 141 Ariz. 487,
687 P.2d 1242. As Salt River makes clear, however, courts must
also ensure that disputed documents are public records within
the meaning of the statute. 168 Ariz. at 536, 815 P.2d at 905.
10
 B.

¶14 Applying the principles discussed above, we reject

PNI’s argument that all e-mails generated or maintained on a

government-owned computer system are automatically public

records. Some e-mails will relate solely to personal matters

and will not, therefore, reflect the requisite substantial nexus

with government activities. Accord Denver Publ’g Co. v. Bd. of

County Comm’rs, 121 P.3d 190, 192, 199 (Colo. 2005); City of

Clearwater, 863 So. 2d at 152-54; State ex rel. Wilson-Simmons

v. Lake County Sheriff’s Dep’t, 693 N.E.2d 789, 792-93 (Ohio

1998). On the other hand, many e-mails generated or retained on

a government computer system are public records because they

relate to government business. The issue, then, is how a court

should determine whether requested e-mails are subject to

disclosure under the public records law when the facts raise a

substantial question as to the nature of the document.

III.

¶15 Comparing the nature and purpose of a document with an

official’s or agency’s activities to determine whether the

required nexus exists necessarily requires a fact-specific

inquiry. To make that inquiry, while maintaining the privacy of

personal, non-public documents, a court should perform an in

camera review. See Church of Scientology v. City of Phoenix

Police Dep’t, 122 Ariz. 338, 339, 594 P.2d 1034, 1035 (App.

11
1979) (noting that the trial court performed an in camera

inspection before ruling that the documents at issue were not

public records). In camera review of disputed documents also

reinforces this Court’s previous holding that the courts, rather

than government officials, are the final arbiter of what

qualifies as a public record. See Mathews, 75 Ariz. at 80-81,

251 P.2d at 896 (rejecting the governor’s assertion that his

decision on what documents were public records was final).

¶16 To further Arizona’s strong policy of public access

and disclosure of public records, the threshold showing needed

to raise a “substantial question” about a document’s status must

be relatively low. When, as in this case, the question is

whether e-mails from or to a public official are public records,

we hold that a party can raise a substantial question by showing

that a government agency or public official withheld documents

generated or maintained on a government-owned computer on the

grounds that those documents are personal or private. Once a

requesting party makes this basic showing, that party can ask

the court to conduct an in camera inspection of any withheld

documents to determine whether they possess the requisite nexus

with official duties that is required of all public records.8

8
Our courts have long approved of in camera review during
the second step of public records analysis to determine whether
privacy interests, confidentiality, or the best interests of the
state outweigh the public’s right of access to documents that
12
The party claiming that the disputed documents are not public

records bears the burden of establishing its claim. If the

party cannot establish that the documents are not public

records, the trial judge can still consider whether privacy,

confidentiality, or the best interests of the state outweigh the

policy in favor of disclosure. See, e.g., Carlson, 141 Ariz. at

490-91, 687 P.2d at 1245-46.

¶17 In this case, no court has reviewed the e-mails at

issue. Absent such a review, we have no record on which we can

determine the nature and content of the requested documents. We

therefore remand this case to permit the superior court to

review the content of the disputed e-mails in camera to

determine whether they are subject to the public records law.

Griffis bears the burden of establishing that the e-mails are

not public records.

IV.

¶18 For the foregoing reasons, we reverse the ruling of

have already been categorized as public records. See, e.g., Cox
Ariz. Publ’ns, 175 Ariz. at 15, 852 P.2d at 1199; Mitchell v.
Superior Court, 142 Ariz. 332, 334, 690 P.2d 51, 53 (1984);
Carlson, 141 Ariz. at 491, 687 P.2d at 1246; Mathews, 75 Ariz.
at 80-81, 251 P.2d at 896-97; Bolm v. Custodian of Records, 193
Ariz. 35, 40-41 ¶ 14, 969 P.2d 200, 205-06 (App. 1998); Church
of Scientology, 122 Ariz. at 339, 594 P.2d at 1035. Our holding
today, that a party can request in camera review on the issue of
whether a document is a public record, permits the parties to
follow a procedure parallel to the procedure followed during the
second step of public records analysis.

13
the superior court, vacate the opinion of the court of appeals,

and remand to the superior court for further proceedings

consistent with this opinion.

_______________________________________
Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

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