With more than 20 years of experience in the areas of civil litigation, media law and employment litigation, DANIEL BARR is a partner at Perkins Coie Law Firm in Phoenix, Arizona. He represents the First Amendment Coalition of Arizona and has taught Mass Communications Law at ASU’s Walter Cronkite School of Journalism and Mass Communication.
Mr. Barr talks with NFOIC about the role of lawyers and the necessity for litigation in the pursuit of open government.
My name is Dan Barr, I’m a partner with Perkins Coie. We’re a law firm. And one of our clients is the First Amendment Coalition of Arizona, who I’m the council for. I also represent numerous newspapers and broadcasters and other media entities.
Talk about the fight for information…
It’s a never-ending battle. In some ways it’s a systemic battle — the tensions between government and getting access to governmental information. In some ways it’s sort of set up by our founding fathers. You’ve got tensions between the first amendment and the fourth amendment. In criminal court areas you have tension between government wanting to do its work in secret versus people wanting to get public information about government. And that’s not necessarily a bad thing, but it’s an ongoing struggle. For people in journalism thinking ‘when will we ever reach accommodation with government regarding access to government records’ —some issues you might reach accommodation on, but there are always new issues and there’s just ongoing tension and that’s probably a healthy thing.
Has this changed over the years?…
Well it’s just different issues at different times. For instance, let’s take access to juvenile courts and access to juvenile courts. When I started, it was difficult to get any information on juvenile courts or attend juvenile court hearings and the like. Now, access is much more open throughout the country. Getting cameras in courtrooms — we were just starting to get cameras in courtrooms when I started practicing law in the mid eighties. The Arizona rule was passed in, I think, 1983 as an experiment. Now you have access in most state courtrooms throughout the country, and there’s a movement to get cameras into federal courts. You now have pilot programs in some federal courts. We don’t have cameras in the Supreme Court yet, but I think that’s just a matter of time. So I think there have been some issues where there’s been progress.
Electronic records were unheard of when I started practicing law. Then for a long time they were treated as somehow different from paper records and that is now beginning to change, as well.
Noticed a difference in public knowledge in accessing gov’t info?
I don’t know if it’s changed. It’s become easier because you can access public information from home. You don’t have to go down to the recorder’s office or the clerk’s office — a lot of records are online and people can access them from their homes just like they can access things from court records or records from the county recorder, or things like that. So in some ways it’s easier, but for a lot of people they still leave it up to the press to do sort of the heavy lifting, the deep digging, that people don’t have the time to do, because people are busy with other aspects of their lives.
The newspapers and TV stations used to be far more aggressive ten years ago, fifteen years ago, in filing actions under the public records law, freedom of information act, open meetings laws. Due to cutbacks in the media organizations a lot of newspaper don’t attend a lot of city council meetings and county meetings anymore. So I used to get calls all the time, twenty years ago, from reporters attending a public meeting, saying ‘gee they just went into executive session,’ or ‘they’re discussing something that’s not on the agenda, what should I do?’ and I don’t get those calls anymore because reporters, by and large, don’t attend those meetings any more. At least for the major newspapers.
Do you work pro bono?
We get paid a retainer by the First Amendment Coalition of Arizona. The First Amendment Coalition is a non-profit corporation of the Arizona Newspapers Association, the Arizona Broadcasters Association, the Arizona Cable Telecommunications Association, the Society of Professional Journalists and the Arizona Press Club. So we get paid a retainer every year that covers a very small part of what we actually do, and we operate a media hotline that’s open to journalists to call with questions about public records, open meetings, cameras in the courtroom, various other issues. Journalists get, what is to them, free over the phone advice and we’ll write letters and do everything under the hotline retainer up until the point where we’re initiating litigation. At that point, the newspaper or the TV station or whoever is making the request will then pick up the fees from there.
How much does an average case like this cost?…
There’s no average court case. That’s a conversation I have with clients all the time. If we file a complaint, the governmental body may fold and give you the documents right away — then it’s not very much money. Or they may fight it all the way to the state Supreme Court. I’ll give you an example of something I didn’t expect to go very far:
Years ago I represented the West Valley View, which is a paper in western Maricopa county. Sheriff Joe Arpaio had denied them access to press releases, because he for whatever reason got his nose out of joint because of some story the West Valley View did. To this day the West Valley View doesn’t know.
So the West Valley View made a public records request, if you can believe it, for press releases issued by Sheriff Arpaio. Now Sheriff Arpaio is not shy about sending out public press releases. At the time he was sending out his press releases to Rush Limbaugh and Fox News and CBS News in New York and national media, but for whatever reason he couldn’t send out a press release to the View. Even when the crimes occurred in the area covered by the West Valley View. So the West Valley View made a public records request for press releases and you’d think that would have ended it. The sheriff’s office refused to comply and we actually had to sue to get access to the press releases. When the Superior Court ruled in our favor, the Sheriff’s office appealed and eventually we won there and we got 45,000 dollars in attorney’s fees from the Sheriff’s office, but that case is something where you’d think, it’s crazy that you’d have to file a public records request — let alone litigate — over press releases which only exist to hand out to the press! So there’s an example of if a government body decides to fight, it can get expensive.
Is it the case in every state that the government has to provide attorney’s fees, etc., if you win a case against them?
Arizona’s public records law and the open meetings law have attorney’s fees provision. Whereas if you are the prevailing party, if you substantially prevail, under the public records law the court has the discretion to give you fees, to give you reasonable fees. It may not be all of your fees. And that attorney’s fees provision only goes one way. If the governmental body wins they don’t get their fees, but if the person seeking the governmental records wins the lawsuit they will likely get their reasonable fees and costs.
Government has no incentive NOT to fight because they’re paying with taxpayer money?
Well, yea you could argue that. If a city council loses a public records lawsuit and they pay 50,000 dollars in fees, who knows what happens in the next election? Whether they’re accountable or not is up to the voters.
What are some tips for the public when filing, or ways around?
I tell this to reporters and it applies to the public as well: Learn about what you’re seeking information about. Learn about what the document flow is. What I tell reporters all the time in covering the beat is it’s very important to know ‘what is the document flow?’ Who produces what documents and where do they go to? If you understand that, then you can more precisely focus what it is you’re asking for.
These public records requests for ‘any and all documents created by the mayor in the last two years’ isn’t very helpful, and the public body throws up its hands and says ‘this is overly burdensome and all of that.’ Specifically ask for what you want, and that might require that you learn about who’s involved in making a decision and where the documents flow to and all of that. But the more specific you are, not only helps the public body in responding quickly, but gives them fewer excuses when the time comes when they’re denying you access and feigning that they don’t understand what you want. If you eventually have to go to a court and sue, the court can see that you were very specific all along about what you wanted and it was the governmental body that was dragging its feet.
How do people find that out?
Well with a reporter it’s educating yourself about the beat: Going and talking to public officials, finding out what they do, and all of that. For members of the public, if you can’t talk to the public officials, get online and see what the agency does…
We write a book called the Arizona Reporters Handbook on Media Law. We do an outline for the Reporters Committee for Freedom of the Press, they have a 50 state compendium on open meeting and public records laws and we write the Arizona section for that. So that’s a good place to look.
Have you ever dealt with the deliberative process exemption?
You know, that doesn’t exist in Arizona. Some public bodies have tried to get that recognized but no Arizona court has yet to recognize that. It’s been recognized in other states like California, but not here. That’s an example of how the public records laws are different in various states. Often I’ll have a reporter ask me a question and they’ll say ‘well I just moved here from Colorado and in Colorado the law is this…” Well, okay that’s interesting but that may not be very helpful to you in Arizona. So if you’re a reporter going from state to state, don’t think that the law that you operated under in one state is necessarily going to be governing in another state.
Some of your most memorable legal battles for information?
The problem is, being a lawyer, the cases that you win you forget about right away. The cases you lose you remember all the details about. When I first started practicing, police records were not considered to be public records in Arizona. Police agencies repeatedly told reporters they couldn’t get access to DRs – departmental reports – and the like. And that’s changed radically during the last 25 years. We first got access to police reports years ago, when I first started practicing law there was a police report about a rape investigation. It turned out that the police knew who the suspected rapist was and for whatever reason they weren’t arresting him. Finally the victim goes to the police and says, ‘hey, there he is! Arrest him.’ Anyway, the reporter doing the story wanted to find out what the police knew and when they knew it about who this person was and the victim was cooperating with the reporter and so we made a request for the police report. And the police denied it and said, ‘well it’s a rape investigation, we can’t give it to you’ and all that. We got the victim to say, ‘I want to know why the police dragged their feet on arresting this guy.’ So we sued over that — we sued the city of Phoenix and the Phoenix Police Department and the court awarded us access to the report.
I had a case before the Arizona Supreme Court in 1993 involving the police investigation into what was called at the time the Phoenix Suns Drug Case. There were various members of the Phoenix Suns who were accused of buying and using cocaine and the investigation eventually collapsed, and I represented some newspapers seeking access to that and it went all the way to the state supreme court. The police and the county attorney’s office were maintaining they couldn’t release records of open, active investigations. When the investigation was closed they would give you the report. We maintained there was no such thing as an exemption for open, active investigations. Now maybe during an open investigation the police can withhold certain information that they might have to release later on because that’s what the public record is, it’s sort of a time-continuum. You have to look at the facts specific to each case of the circumstances and that changes over time.
Anyway, the State Supreme Court held that there was no such thing as an exemption for open, active police investigations and the police had to comply with the public records law whether the investigation was active or not. So that case was a pretty big deal.
Recently we were involved in a case involving access to metadata under the public records law. Metadata is sort of data about data in electronic records. The court of appeals had held that metadata was not subject to release under the public records law. We filed an amicus brief in the case. The case was actually an employment dispute between a police officer and the city of Phoenix. There were no media involved in it at all. But what often happens in the law is that important questions in the law in one area get determined in cases that really have nothing to do with that area in some ways. So we got the Supreme Court to reverse and wrote the first decision in the country regarding access to metadata. That metadata is subject to the public records law and more importantly, what the court held was that the public record is the record kept in its native format. So if it’s kept in a word document or an excel sheet, that’s the public record. The body doesn’t get to sort of print out the record and give it to you — they have to give it to you in its native format. And if that format is electronic, they have to give it to you in an electronic format, if the electronic records contain metadata they have to give that to you as part of the record. So that’s a pretty important decision regarding access to electronic records. That was a couple years ago.
How does Arizona rate in terms of openness and access?
You know, I don’t sit down and compare it to other states. I’ll leave that to people… I’ll see various people over time give these sort of reports like, Sunshine reports, like whether a state is sunny, or there are clouds… I think those things are sort of silly and people who come up with them are making very superficial analyses. The truth is that when you look state by state, some states are more open in access to police reports, Arizona is more open in access to employee records of public employees — there’s no exemption for personnel records in Arizona law where there may be in other states. Other states may be more open to access to birth certificates or death certificates, where in Arizona those are exempt from the public records law, strangely.
There are all sorts of records and you have to look as a sort of case by case analysis. But I think compared to a lot of other states, Arizona compares pretty favorably. I think the Arizona public records law is far more effective than the federal freedom of information act. The federal freedom of information act has pretty much ceased to be a tool for daily journalism. It’s helpful in doing books, it’s helpful in doing long-term projects, but it’s useless for daily journalism. The Arizona public records law doesn’t have the time schedule set out by the FOIA that instead of responding to your request in 20 days, the Arizona public records law says that you have to respond promptly to a public records request and … that could mean a day if the document is one page, it could mean a week or two if the document is longer and they have to go through and excise information, but it’s a case-by-case determination.