Amy Silverman v. Ades

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

AMY SILVERMAN, ET AL.,
Plaintiffs/Appellees,

v.

ARIZONA DEPARTMENT OF ECONOMIC SECURITY,
Defendant/Appellant.

No. CV-23-0181-PR
June 3, 2024

Appeal from the Superior Court in Maricopa County
The Honorable Sally Schneider Duncan, Judge, Retired
No. LC2021-000182-001

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Opinion of the Court of Appeals, Division One
255 Ariz. 348 (App. 2023)

VACATED

COUNSEL:

Gregg P. Leslie, Zachary R. Cormier, Samuel Lederman (argued), Markus
Auers (argued), First Amendment Clinic, Public Interest Law Firm, Sandra
Day O’Connor College of Law, Arizona State University, Phoenix,
Attorneys for Amy Silverman, et al.

William A. Richards (argued), Karen J. Moskowitz, Richards & Moskowitz
PLC, Phoenix, Attorneys for Arizona Department of Economic Security
 SILVERMAN, ET AL. V. ADES
Opinion of the Court

Timothy Sandefur, Parker Jackson, Scharf-Norton Center for Constitutional
Litigation at the Goldwater Institute, Phoenix, Attorneys for Amicus Curiae
Goldwater Institute

Jared G. Keenan, Lauren K. Beall, Rachel Carroll, American Civil Liberties
Union Foundation of Arizona, Phoenix, Attorneys for Amicus Curiae
American Civil Liberties Union of Arizona

VICE CHIEF JUSTICE TIMMER authored the Opinion of the Court, in
which JUSTICES BOLICK, LOPEZ, BEENE, MONTGOMERY, KING and
PELANDER (Ret.) joined. *

VICE CHIEF JUSTICE TIMMER, Opinion of the Court:

¶1 Arizona law generally shields from public inspection all
records maintained by the Arizona Department of Economic Security
(“ADES”) concerning abuse, exploitation, or neglect of vulnerable adults.
A.R.S. § 46-460(A). The “bona fide research” exception to this prohibition
authorizes ADES to release records for inspection to a person conducting
bona fide research. § 46-460(D)(8). The primary issue before us is
whether investigative journalists can engage in “bona fide research.” We
conclude they can. And in reaching our conclusion, we also define “bona
fide research” and provide guidance concerning ADES’s exercise of
discretion in deciding whether and in what manner to release records under
the exception.
BACKGROUND

¶2 Adult Protective Services (“APS”) operates as a program
within ADES. See A.R.S. §§ 46-451 to -474. APS identifies vulnerable
adults being abused, exploited, or neglected and then facilitates the

*
Chief Justice Brutinel is recused from this matter. Pursuant to article 6,
section 3 of the Arizona Constitution, Justice John Pelander (Retired) of the
Arizona Supreme Court is designated to sit on the case until it is finally
determined.

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delivery of protective services to those adults. See §§ 46-451(A)(10),
-452(A). It may also establish a multidisciplinary team that includes law
enforcement, human service agencies, adult disability groups, and local
tribal governments. See § 46-461(A). This team provides education and
develops resources to assist ADES in protecting vulnerable adults. See
§ 46-461(B). “Vulnerable adults” are adults who are unable to protect
themselves due to a physical or mental impairment. See § 46-451(A)(12).

¶3 In the course of its work, APS receives and evaluates reports
of abuse, exploitation, and neglect and maintains a registry of substantiated
reports. See §§ 46-452(A)(1); -454 (A), (D)–(G); -459(A). Unsurprisingly,
APS’s records contain personally identifying information concerning
vulnerable adults, caregivers, and the person reporting abuse, exploitation,
or neglect. See § 46-454(A), (C)–(E). The records also contain vulnerable
adults’ medical, psychiatric, and financial records; property inventories and
audits; photographs documenting abuse; and peace officers’ reports. See
§ 46-454(F)–(J). Section 46-460 shields these sensitive records from public
disclosure, apart from specified exceptions.

¶4 Amy Silverman is a freelance investigative journalist who
writes stories for multiple news publications, including the Arizona Daily
Star in Tucson, which is owned and operated by TNI Partners. She
writes extensively about issues affecting individuals with intellectual and
developmental disabilities. In 2020, Silverman submitted several
unsuccessful requests to ADES that sought access to public records under
its custody and control. Here, we are concerned only with her May 7
request, which seeks access to “[APS] reports, investigations and other
materials that provided the data for APS quarterly reports from April
2019 to March 2020.” She asked only for materials concerning closed
cases and acknowledged that ADES would likely redact names and
addresses.

¶5 ADES denied Silverman’s request on May 29. It explained
both that § 46-460 prohibits ADES from releasing APS records unless a
listed exception applies and that no such exception applies here. Nearly
five months later, on October 23, Silverman demanded that ADES grant
her request because it fits within an exception authorizing disclosure of
records to persons engaged in “bona fide research,” if personally
identifying information is redacted. See § 46-460(D)(8). She claimed
the records would assist her in reporting how ADES either protects or fails
to protect vulnerable adults. ADES declined to change its stance.
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¶6 Silverman and TNI Partners (collectively “Silverman”) sued
ADES, asking the superior court to compel production of the requested
records under the “bona fide research” exception. ADES moved to
dismiss the complaint pursuant to Arizona Rule of Civil Procedure
12(b)(6). It argued that the records sought are statutorily protected from
production under § 46-460 and no exception applies. After full briefing
and oral argument, the court found that Silverman’s journalistic activities
qualify as “bona fide research” under § 46-460(D)(8), and it therefore
denied ADES’s motion. Without awaiting a further request, the court
entered a judgment on its own initiative, compelling ADES to produce the
requested documents after redacting personally identifying information.

¶7 The court of appeals affirmed in part, reversed in part, and
remanded the case back to the superior court. On remand, the superior
court was to rule on Silverman’s request using the court of appeals’
definition of § 46-460(D)(8)’s bona fide research exception. See Silverman
v. Ariz. Dep’t of Econ. Sec., 255 Ariz. 348, 350–51 ¶ 2 (App. 2023).
Specifically, the court of appeals concluded that “research” under the
exception must be conducted for “educational, administrative, or
scientific purposes.” See id. at 354 ¶ 20. The court also concluded that
a requesting party must demonstrate that this research is “bona fide” by
at least “provid[ing] detailed descriptions that outline: the specific
information sought and the project’s purpose, expected outcomes, and the
methodology the researcher will employ to maintain the confidentiality
of the records.” See id. at 355 ¶ 24. Notably, the court decided that if
the bona fide research exception applies, ADES still has discretion
whether to disclose APS records, as long as ADES does not exercise that
discretion arbitrarily or capriciously. See id. ¶ 29. Finally, the court
stated that anyone, including journalists, may qualify for the bona fide
research exception. See id. at 354 ¶ 20.

¶8 Neither party is satisfied with the court of appeals’ opinion,
so both filed petitions for review. In a nutshell, ADES challenges the
court’s interpretation of the bona fide research exception, and Silverman
takes umbrage with the need for remand to determine whether she meets
that exception. 1 We accepted review of both petitions to define “bona

1 ADES also criticizes the court of appeals’ interpretation of § 46-460(D)(8)
as impermissibly advisory “because the parties placed no real facts before

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fide research” under § 46-460(D)(8) and then decide whether the record
here is sufficient to determine if Silverman’s request meets the bona fide
research exception. We also asked the parties to brief whether our
statutory interpretation would implicate any constitutional issues. We
have jurisdiction under article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

¶9 The superior court effectively entered summary judgment
in favor of Silverman. Therefore, we review that judgment de novo.
Glazer v. State, 237 Ariz. 160, 167 ¶ 29 (2015). Similarly, we review
matters of statutory interpretation de novo. State v. Jones, 246 Ariz. 452,
454 ¶ 5 (2019).

A. “Bona Fide Research” Under § 46-460(D)(8) Occurs When The
Researcher Engages In A Good Faith And Genuine Study To Acquire
More Knowledge, Discover New Facts, Or Test New Ideas Concerning
Reporting Or Stopping The Abuse, Exploitation, Or Neglect Of
Vulnerable Adults.

¶10 Arizona provides a general right to inspect public records.
See A.R.S. § 39-121 (“Public records and other matters in the custody of
any officer shall be open to inspection by any person at all times during
office hours.”). But this open access policy is qualified by numerous
statutory exceptions restricting access, including § 46-460. See Carlson v.
Pima County, 141 Ariz. 487, 490 (1984).

¶11 Section 46-460(A) states in relevant part that “[u]nless
otherwise provided by law . . . all information that is gathered or created
by [APS] and that is contained in [APS] records is confidential and may

the courts, leaving them insufficient context to meaningfully define the
term.” See Bennett v. Brownlow, 211 Ariz. 193, 196 ¶ 16 (2005) (noting courts
generally refrain from issuing advisory opinions). ADES misapprehends
the basis for statutory interpretation. Section 46-460(D)(8)’s meaning does
not depend on or vary with the facts of any particular public records
request. Rather, the statute’s meaning depends on the legislature’s intent,
as expressed in § 46-460(D)(8)’s language. See Glazer v. State, 244 Ariz. 612,
614 ¶ 9 (2018) (“We construe statutes to give effect to the legislature’s
intent.”). Thus, the court of appeals’ opinion is not advisory.

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not be released except as provided in subsections B, C and D of this
section.” Thus, unlike with other public records, APS records are
presumptively restricted from release. The bona fide research exception
to this general prohibition is at issue here and provides:

D. Employees of [ADES] may release any information that
is otherwise held confidential under th[e] section, except the
reporting source’s identity, to the following or under any of
the following circumstances:

....

8. Any person who is engaged in bona fide research, if no
personally identifying information is made available, unless
it is essential to the research and the director or the director's
designee gives prior approval. If the researcher wants to
contact a subject of a record, the subject’s consent must be
obtained by the department before the contact.

§ 46-460(D)(8). What is “bona fide research”? The legislature did not
explain, thus tasking us with identifying its intended meaning. See
Glazer, 244 Ariz. at 614 ¶ 9.

¶12 We start with § 46-460(D)(8)’s language because it is the best
indicator of meaning. Id. If that language is plain and unambiguous
when read in context, we apply it without further analysis. Id. If a
provision has more than one reasonable interpretation, it is ambiguous.
Ryan v. Napier, 245 Ariz. 54, 64 ¶ 41 (2018). We resolve an ambiguity by
examining secondary factors, like the statute’s subject matter and
purpose, and the effects and consequences of alternate interpretations.
Id.

1. What is “research” under § 46-460(D)(8)?

¶13 When read in isolation, “research” has a broad meaning.
For example, “research” could refer to the study of any subject without
limitation, such as ascertaining how the government generally uses its
resources. But when interpreting the term within its broader statutory
framework, we find a narrower meaning.

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¶14 We use the commonly accepted meaning for “research”
unless § 46-460(D)(8)’s context suggests a special meaning. See State v.
Reynolds, 170 Ariz. 233, 234 (1992). Black’s Law Dictionary defines
“research” as the “[s]erious study of a subject with the purpose of
acquiring more knowledge, discovering new facts, or testing new ideas”
and “finding information that one needs to answer a question or solve a
problem.” Research, Black’s Law Dictionary (11th ed. 2019); see Chaparro
v. Shinn, 248 Ariz. 138, 141 ¶ 14 (2020) (noting that courts generally consult
dictionary definitions to ascribe ordinary meaning to a term). Similarly,
the Merriam-Webster Dictionary defines “research” as “studious inquiry
or examination,” “the collecting of information about a particular
subject,” “careful or diligent research,” or “to search or investigate
exhaustively.” Research, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/research (last visited
May 28, 2024).

¶15 We accept these definitions, but the context in which
“research” is used requires us to refine the term by limiting what can form
the basis for “research” under § 46-460(D)(8). See Reynolds, 170 Ariz.
at 234. Section 46-460(A) prohibits disclosure of all APS records except
in identified circumstances, including the bona fide research exception.
If “research” under that exception includes research on any subject for any
reason, the exception would swallow the general rule of non-release; all
records requests seek to acquire more knowledge about a subject for some
reason. See State v. Green, 248 Ariz. 133, 135 ¶ 8 (2020) (“We must strive
to construe a statute and its subsections as a consistent and harmonious
whole.” (cleaned up)); Salt River Project Agric. Improvement & Power Dist.
v. Apache County, 172 Ariz. 337, 342 (1992) (noting that common sense has
a role in statutory interpretation). Therefore, the context in which
“research” is used requires us to limit what constitutes “research” based
on the subjects researched and the reasons for doing so. See Reynolds, 170
Ariz. at 234.

¶16 We find these limitations by considering APS’s role and the
content of its records. A “program goal” for APS is to facilitate the
delivery of social services to “resolve problems of abuse, exploitation or
neglect of a vulnerable adult.” § 46-451(A)(10). To that end, APS
receives and evaluates reports of abuse, exploitation, and neglect and
connects vulnerable adults with needed protective services. See
§§ 46-451(A)(10); -452(A); -454(A), (D)–(G); -459(A). APS records
involve or reflect those efforts, and any research meaningfully benefitting
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from review of these records would logically concern a study of one or
more topics underlying APS’s program goal for the purpose of analyzing
data and arriving at conclusions. Enabling research on these topics also
advances APS’s program goal because any fruitful results could
illuminate better ways to protect vulnerable adults.

¶17 The context in which “research” is used in § 46-460(D)(8)
also suggests that records requests for research must concern topics rather
than target particular people. The bona fide research exception only
permits researchers to obtain records “if no personally identifying
information is made available,” unless the ADES director permits release
of information essential to particular research. § 46-460(D)(8). This
qualification shields the identities of vulnerable adults; anyone who
reports abuse, exploitation, or neglect; and anyone involved in providing
protective services, including APS employees. See § 46-460(A).
Consequently, a researcher cannot ask for and obtain records concerning
particular people, as the identities of those involved would necessarily be
revealed. Similarly, a researcher cannot obtain records concerning
particular providers or incidents if those records would necessarily reveal
personal identities, even if ADES redacted names and addresses. For
example, a researcher seeking all APS records involving a small group
home may not fall under the bona fide research exception, if compliance
would necessarily identify vulnerable adults; persons who reported
abuse, exploitation, or neglect; or group home workers. Nor would a
request for all APS records involving a publicly reported incident at a
nursing home, if production would necessarily identify the persons
involved. However, a researcher could seek APS records reflecting
reports of financial exploitation of vulnerable adults over the age of sixty,
if personally identifying information is withheld to protect the identities
of vulnerable adults, those who reported the exploitation, or those who
provided services.

¶18 Limiting “research” topics to reporting or stopping the
abuse, exploitation, or neglect of vulnerable adults—and restricting
research to topic categories rather than particular people—preserves
§ 46-460(A)’s directive to generally maintain the confidentiality of APS
records while simultaneously giving meaning to the bona fide research
exception.

¶19 ADES argues we should further limit “research” to helping
ADES improve its operations because this would be consistent with the
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statutory objective of maintaining APS record confidentiality except in
very narrow circumstances. But nothing in § 46-460 supports this view.
Subsection (D)(8) applies to “any” bona fide research without confining
that research to helping ADES.

¶20 Conversely, in A.R.S. § 8-807, which addresses the
production of records maintained by the Department of Child Safety, the
legislature limited a similar bona fide research exception to research
“which might provide [Department of Child Safety] information that is
beneficial in improving the department.” § 8-807(F)(2). The
legislature’s failure to include similar language in § 46-460(D)(8) further
evidences an intent that the bona fide research exception here can be for
any study of the topics underlying APS’s program goals, whether or not
the study helps ADES. See Columbus Life Ins. Co. v. Wilmington Tr., N.A.,
255 Ariz. 382, 386 ¶ 18 (2023) (pointing out that statutes explicitly voiding
certain contracts demonstrates “that the legislature knows how to deem a
contract void when it so wishes and did not do so” in the statute at issue).

¶21 Also, other § 46-460 exceptions and § 46-461 address efforts
to help ADES. Section 46-460(D)(2) permits a release of APS records
“[w]hen necessary for purposes that are directly connected with the
administration of adult protective services.” Section 46-460(D)(5) allows
release to “[a]ny statutorily created team that is mandated to review adult
protective services and the clients served in the completion of the official
duties.” This provision apparently refers to a multidisciplinary team
created under § 46-461, which works “to better enable the department to
carry out its adult protection functions and to meet the community’s
needs for adult protection services.” See § 46-461(B). Indeed,
§ 46-461(C) authorizes APS to release to team members “all information
or records that are necessary for the official duties” with the client’s name
generally redacted. Thus, because other statutory provisions expressly
authorize release of APS records to help ADES, there is insufficient
support for reading that limitation into the bona fide research exception
in § 46-460(D)(8).

¶22 Relatedly, we disagree with the court of appeals that the
research must be for “educational, administrative, or scientific purposes.”
See Silverman, 255 Ariz. at 354 ¶ 20. Many research efforts would
undoubtedly fall within one of these categories. But applying these
modifiers would foreclose research performed for other purposes, such as
investigating whether APS uses the best methods in responding to reports
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of neglect, abuse, or exploitation. Nothing in § 46-460(D)(8) suggests the
court of appeals’ limitation, so adopting it would require us to
effectively—and impermissibly—rewrite the statute. See AZ Petition
Partners LLC v. Thompson, 255 Ariz. 254, 260 ¶ 29 (2023) (explaining that
adherence to separation of powers compels courts to refrain from
changing statutory meaning under guise of interpretation). Although
public policy reasons may support this limitation, the legislature must be
the body to impose it. See Seattle Times Co. v. Benton County, 661 P.2d 964,
966 (Wash. 1983) (addressing statutory provision permitting release of
juvenile records to “individuals or agencies engaged in legitimate
research for educational, scientific, or public purposes” (emphasis
omitted)).

¶23 The court of appeals relied on Newsday, Inc. v. State
Commission on Quality Care for Mentally Disabled, 601 N.Y.S.2d 363 (Sup.
Ct. 1992), to add these limiting modifiers. See Silverman, 255 Ariz.
at 353–54 ¶¶ 19–20. However, Newsday, Inc. is not helpful. There, a
single trial court judge found that a “bona fide research purpose”
exception to a New York law shielding investigative reports of child abuse
exists if requesters are conducting “academic, administrative or scientific
research for the purpose of ascertaining the causes of child abuse and
methods of alleviating or eliminating the problem.” Newsday, Inc., 601
N.Y.S.2d at 365. This finding was unmoored from any language in the
statute or legislative history. Instead, the judge relied on the importance
of keeping sensitive records confidential and cited language in an
analogous mental hygiene law that authorized the release of confidential
clinical records to “qualified researchers upon the approval of the
institutional review board or other committee specially constituted for the
approval of research projects at the [mental health] facility.” Id.
at 364–65 (cleaned up). Neither § 46-460(D)(8) nor any analogous
Arizona statute has similar language. Thus, even if the judge in
Newsday, Inc. correctly interpreted the statute at issue there, we do not
find his reasoning persuasive in interpreting § 46-460(D)(8).

¶24 In sum, we conclude that “research” under § 46-460(D)(8)
means engaging in a study to acquire more knowledge, discover new
facts, or test new ideas concerning reporting or stopping the abuse,
exploitation, or neglect of vulnerable adults. “Research” does not
include gathering information merely to satisfy a person’s curiosity or to
report it to others, including news publication subscribers. The
researcher must request the records to study reporting or stopping the
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abuse, exploitation, or neglect of vulnerable adults with the goal of using
the record information to reach conclusions regarding those topics.
Also, unless essential to the research and subject to the approval of the
ADES director, the bona fide research exception does not entitle a
researcher to review records if such review would enable the
identification of vulnerable adults, service providers, or reporters of
abuse, exploitation, or neglect.

2. What does “bona fide” mean?

¶25 Neither party disputes that “bona fide” should be given its
plain meaning. Black’s Law Dictionary defines the term as “[m]ade in
good faith; without fraud or deceit . . . [s]incere; genuine.” Bona Fide,
Black’s Law Dictionary (11th ed. 2019). The Merriam-Webster
Dictionary similarly defines “bona fide” as “genuine,” “sincere,” and
“[m]ade in good faith without fraud or deceit.” Bona Fide,
Merriam-Webster.com, https://www.merriam-webster.com/dictionary
/bona%20fide (last visited May 28, 2024). We adopt these meanings. A
person engages in “bona fide” research when his or her study is both
genuine and conducted in good faith.

¶26 ADES is authorized to determine whether a person seeking
records is engaged in “bona fide” research. See § 46-460(D)(8)
(providing that ADES employees “may” release APS records under the
bona fide research exception). To that end, ADES may adopt rules
implementing the making, granting, and denying of requests for records
under the bona fide research exception. § 46-460(E). To our
knowledge, no such rules currently exist. But we caution against
requiring detailed information that is unnecessary to determining
whether research is “bona fide” and serves merely as a disincentive
against requesting records under the bona fide research exception. See
Carlson, 141 Ariz. at 491 (reviewing agency decision denying records
request for abuse of discretion). Additionally, we disagree with the
court of appeals that a requester must forecast the “expected outcomes”
of the research. See Silverman, 255 Ariz. at 355 ¶ 24. It is illogical,
unreasonable, and unnecessary to require researchers to divine advance
outcomes about ongoing research to demonstrate that their efforts to
arrive at an appropriate outcome are bona fide.

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B. Anyone, Including Journalists, Can Qualify Under The Bona Fide
Research Exception.

¶27 ADES argues that § 46-460(D)(8)’s bona fide research
exception applies only to persons and entities whom ADES itself
authorizes to conduct research, either through a multidisciplinary team
created under § 46-461 or through a memorandum of understanding or
similar arrangement. It bases this argument on (1) § 46-460(A)’s general
prohibition against releasing any APS records; (2) that other exceptions
authorize release in narrow circumstances; and (3) ADES’s role in
protecting vulnerable adults. Consequently, ADES asserts that
journalists like Silverman do not engage in “bona fide research” unless
ADES authorizes them to do so. Silverman counters that the
constitutional protections afforded to a free press support including
journalists within the exception. See U.S. Const. amend. I; Ariz. Const.
art. 2, § 6.

¶28 Journalists who lack ADES research-authorization are not
categorically excluded from the bona fide research exception. By its
plain terms, the exception applies to “[a]ny person,” without limitation.
§ 46-460(D)(8). By contrast, other exceptions to withholding release of
APS records apply to more precisely described recipients. See
§ 46-460(D)(1) (“The client”), -460(D)(4) (“Persons identified by the
client”), -460(D)(5) (“Any statutorily created team that is mandated to
review adult protective services”). ADES is correct that the First
Amendment does not guarantee journalists a “right of special access to
information not available to the public generally.” See Branzburg v.
Hayes, 408 U.S. 665, 684 (1972); see also Houchins v. KQED, Inc., 438 U.S. 1,
14 (1978) (“The Constitution itself is neither a Freedom of Information Act
nor an Official Secrets Act.”). But here, members of the public are given
access to APS records to conduct bona fide research. § 46-460(D)(8). As
members of the public, journalists enjoy the same access. And
interpreting the statute as categorically excluding journalists would raise
serious freedom of speech and equal protection concerns. See U.S. Const.
amend. I (prohibiting laws “abridging the freedom of speech, or of the
press”); U.S. Const. amend. XIV, § 1 (prohibiting states from enacting laws
that “deny to any person within its jurisdiction the equal protection of the
laws”); Ariz. Const. art. 2, § 6 (“Every person may freely speak, write, and
publish on all subjects, being responsible for the abuse of that right.”);
Ariz. Const. art. 2, § 13 (“No law shall be enacted granting to any citizen,
class of citizens, or corporation other than municipal, privileges or

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immunities which, upon the same terms, shall not equally belong to all
citizens or corporations.”); see also State v. Arevalo, 249 Ariz. 370, 373 ¶ 9
(2020) (requiring courts to give statutes a constitutional construction if
possible).

C. ADES Has Discretion Whether, And On What Conditions, To
Release APS Records For Bona Fide Research.

¶29 Silverman argues the court of appeals incorrectly concluded
that ADES maintains discretion to deny a records request that satisfies the
bona fide research exception. See Silverman, 255 Ariz. at 355 ¶ 27. We
disagree.

¶30 As explained, § 46-460(D) provides ADES with discretion to
release APS records if the request falls within a statutory exception,
including the bona fide research exception. § 46-460(D)(8). Nothing in
§ 46-460, however, eliminates ADES’s common-law authority to deny a
request if producing the requested records would harm important public
policy interests. See Carlson, 141 Ariz. at 490–91 (recognizing that public
records statutes did not affect an agency’s common-law authority to refuse
a records request or provide an alternate response in light of “important
public policy considerations relating to protection of either the
confidentiality of information, privacy of persons or a concern about
disclosure detrimental to the best interests of the state”); see also London v.
Broderick, 206 Ariz. 490, 493 ¶ 9 (2003) (concluding that “sometimes the
benefits of public disclosure must yield to the burden imposed on private
individuals or the government itself by disclosure”). Indeed, ADES “may
adopt rules to implement the purposes of [ADES] and the duties and
powers of the director” concerning records requests. § 46-460(E).

¶31 Thus, for example, ADES may decline a request in full or in
part if it is too burdensome for staff to comply; it would infringe on a
vulnerable person’s privacy rights, despite the redaction of personally
identifying information; disclosure would interfere with an ongoing
investigation; or the requester would not keep information in the records
confidential. See Carlson, 141 Ariz. at 490–91; London, 206 Ariz. at 493 ¶ 9.
However, in exercising this discretion, ADES should consider reasonable
alternatives that would simultaneously satisfy the records request while
safeguarding the public interest. See Carlson, 141 Ariz. at 490–91; London,
206 Ariz. at 493 ¶ 9. For example, to further shield the identity of a
vulnerable person, ADES could redact from a report the name and address

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of the person’s group home. Also, if a request were so burdensome that
complying with it would interfere with ADES’s functioning, ADES could
work with the requester to narrow the request. Any abuse of ADES’s
discretion could be remedied by a court. See Carlson, 141 Ariz. at 491.

D. The Record Here Requires Remand.

¶32 We agree with the court of appeals that the superior court
correctly denied ADES’s motion to dismiss. See Silverman, 255 Ariz. at 355
¶ 26. Silverman could qualify for the bona fide research exception under
§ 46-460(D)(8). But because the superior court entered judgment for
Silverman on its own initiative, the parties had no opportunity to develop
the record to permit us to determine whether Silverman actually qualified
under the exception or whether ADES had reason to deny or curtail the
request. We therefore reverse the judgment in favor of Silverman and
remand this case to the superior court. After giving the parties an
opportunity to submit any relevant evidence and make arguments, the
court should apply the reasoning in this opinion and decide (1) whether
Silverman meets the bona fide research exception in § 46-460(D)(8); and, if
so, (2) whether ADES abused its discretion by denying that request.

CONCLUSION

¶33 For the foregoing reasons, we vacate the court of appeals’
opinion. We affirm the superior court’s judgment insofar as it denied
ADES’s motion to dismiss. But we reverse the superior court’s judgment
for Silverman and remand for further proceedings. ADES requests an
award of attorney fees under A.R.S. § 12-1840. Because no party has yet
prevailed in this case, we deny ADES’s request.

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