Beau Hodai v. the City of Tucson and Tucson Police Department

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
BEAU HODAI,
Plaintiff/Appellant,
v.
THE CITY OF TUCSON, A MUNICIPAL CORPORATION; AND THE TUCSON
POLICE DEPARTMENT, A MUNICIPAL AGENCY,
Defendants/Appellees.
No. 2 CA-CV 2015-0018
Filed January 7, 2016
Appeal from the Superior Court in Pima County
No. C20141225
The Honorable D. Douglas Metcalf, Judge
REVERSED, IN PART, AND REMANDED
COUNSEL
ACLU Foundation of Arizona, Phoenix
By Daniel J. Pochoda and Darrell Hill
Counsel for Plaintiff/Appellant
Michael G. Rankin, Tucson City Attorney, Tucson
By Dennis P. McLaughlin and Michael W. L. McCrory
Counsel for Defendants/Appellees
HODAI v. CITY OF TUCSON
Opinion of the Court
OPINION
Presiding Judge Miller authored the opinion of the Court, in which
Chief Judge Eckerstrom and Judge Espinosa concurred.
M I L L E R, Presiding Judge:
¶1 In this appeal from a superior court special action to
compel disclosure of public records withheld by the City of Tucson,1
we address whether the best interests of the state support the court’s
decision denying all relief. In concluding that disclosure of some
redacted records does not harm the government or its people, we
reverse in part and direct the court to address ancillary matters on
remand.
Facts and Procedural Background
¶2 In October 2013, Hodai requested TPD public records
related to cell phone tracking equipment called “Stingray.” The city
describes Stingray as a surveillance technology device 2 that could
“assist in abduction/kidnapping investigations,” but was used in
1The records request was made to the City of Tucson and its
police department (TPD), which we jointly refer to as the city unless
the context requires differentiation.
2 The parties refer to “Stingray” and “Stingray II.” For the
purposes of this appeal, there is no difference between the versions.
Generally, this type of device is known as a cell site simulator, which
mimics a cell tower so that responding cell phones provide to it data
typically used for the functioning of the cellular network and
individual phone administration. Brian L. Owsley, Triggerfish,
Stingrays, and Fourth Amendment Fishing Expeditions, 66 Hastings L.J.
183, 191-92 (2014). Interception of such information has been used in
criminal investigations for a number of years. Id.2
HODAI v. CITY OF TUCSON
Opinion of the Court
only a few criminal investigations before the city discontinued its
use.3
¶3 The records request specified: (1) TPD records and
“work product” using or related to Stingray; (2) communications
about the purchase, use, and maintenance of Stingray equipment;
and, (3) all communications with Stingray’s manufacturer, Harris
Corporation. Hodai identified the equipment as having been
purchased by the city several years earlier with a specific federal
grant. TPD initially provided four redacted documents in response.
The twenty pages consisted of contract information and an email
exchange concerning redactions requested by Harris. No
information regarding Stingray’s use or cases in which it was
employed was disclosed. Hodai filed two additional related records
requests in November and December, but no further documents
were produced. Hodai included in each records request that the city
inform him if records were withheld and the reasons for the non-
disclosure. See A.R.S. § 39-121.01(D)(2). The complaint alleged a
TPD sergeant informed him after his second request that it would be
too time-consuming to locate search warrants and other responsive
documents.
¶4 In March 2014, Hodai filed a statutory special action
requesting an order directing the city to provide responsive records
and awarding Hodai attorney fees and costs. The city filed an
answer in which it generally denied it had failed to comply with the
public records law. It also averred that in “its efforts to prepare for
this lawsuit,” it found TPD training materials, an operational
manual, and forms for Stingray use. It declined, however, to
disclose these materials based on a review by the Federal Bureau of
Investigation (FBI) that opined disclosure would not be in the best
interests of the state. The city did, however, offer them for the trial
court’s in camera review. Additionally, it stated it was aware of four
3The city’s answering brief indicated that the device had left
its possession, but at oral argument and in a notice of errata counsel
clarified that the city had stopped using the device around the time
of the litigation, but retains it pending resolution of other issues.
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Opinion of the Court
closed and one open criminal investigations in which Stingray had
been used. It also offered for in camera inspection the “full case
files” of the completed investigations. Finally, the city attached two
affidavits to its answer: (1) an FBI agent’s explanation of how law
enforcement uses Stingray and the detrimental effect if technical
information about it were released; and, (2) a TPD lieutenant’s
testimony about the responsive documents, as well as TPD’s use and
maintenance of Stingray.
¶5 The city subsequently filed several hundred pages
under seal accompanied by a motion requesting the trial court
inspect documents in camera. The documents included law
enforcement training materials, a form used for officers to request
Stingray monitoring, a “data dump” of raw data received from the
equipment during an investigation, and five police reports from
ongoing and closed criminal cases. The city did not wait for a court
ruling to disclose the closed case reports, however; the records were
produced soon after Hodai requested them by their specific case
numbers. At oral argument on the motion to inspect, the court
ordered the city to provide a list of documents withheld and reasons
why, additionally ordering the parties to file briefs. The court also
concluded at the hearing that the records of the ongoing case should
be withheld because the investigation was sensitive and “release of
records from that would jeopardize” it.
¶6 After briefing by the parties, but without further
hearings, the trial court concluded in an unsigned ruling that all
documents produced in camera were properly withheld and it
denied all other requests for documents. Hodai appealed and we
suspended jurisdiction for the trial court to enter a final judgment.
See Ariz. R. Civ. App. P. 3(b), 9(c). The court having done so, we
have jurisdiction over the appeal pursuant to A.R.S. §§ 12-2101(A)(1)
and 12-120.21. See Ariz. R. P. Spec. Actions 8(a).
Discussion
¶7 Arizona’s public records law mandates “[public
records] shall be open to inspection by any person at all times
during office hours.” A.R.S. § 39-121. A person need not
demonstrate a particular purpose to justify disclosure. Bolm v.
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Opinion of the Court
Custodian of Records of Tucson Police Dep’t, 193 Ariz. 35, ¶ 10, 969 P.2d
200, 204 (App. 1998) (“A person’s right to public records under
[§ 39-121] is not conditioned on his or her showing, or a court
finding, that the documents are relevant to anything.”). The fact that
the public record exists is sufficient to create a presumption
requiring disclosure. See Griffis v. Pinal Cty., 215 Ariz. 1, ¶ 8, 156
P.3d 418, 421 (2007). Nonetheless, a public officer may refuse release
or inspection of a public record if such disclosure “might lead to
substantial and irreparable private or public harm.” Carlson v. Pima
Cty., 141 Ariz. 487, 491, 687 P.2d 1242, 1246 (1984). Discretionary
refusal to disclose based on the best interests of the state is subject to
judicial scrutiny. Id. “Th[e] ‘best interests of the state’ standard is
not confined to the narrow interest of either the official who holds
the records or the agency he or she serves. It includes the overall
interests of the government and the people.” Phx. Newspapers, Inc. v.
Keegan, 201 Ariz. 344, ¶ 18, 35 P.3d 105, 109-10 (App. 2001). The
government has the burden of specifically demonstrating how
production of documents would be detrimental to the best interests
of the state. Cox Ariz. Publ’ns, Inc. v. Collins, 175 Ariz. 11, 14, 852
P.2d 1194, 1198 (1993).
¶8 Upon a determination that the documents at issue are
clearly public records within the meaning of the statute, the court
determines whether the government’s proffered explanation of
public harm outweighs the policy in favor of disclosure. Carlson, 141
Ariz. at 491, 687 P.2d at 1246; Judicial Watch, Inc. v. City of Phx., 228
Ariz. 393, ¶¶ 10, 17-18, 267 P.3d 1185, 1187, 1189 (App. 2011). The
parties do not dispute, and we agree, that the Stingray documents
are public records. Additionally, the trial court appropriately
undertook the balancing test pursuant to Carlson. We defer to the
trial court’s factual findings unless clearly erroneous, but review de
novo whether its denial of access was improper. Keegan, 201 Ariz.
344, ¶ 11, 35 P.3d at 108-09. We are not bound by the trial court’s
findings if clearly erroneous. City of Tucson v. Morgan, 13 Ariz. App.
193, 195, 475 P.2d 285, 287 (1970).
Quick Reference Sheets and Training Materials
¶9 Hodai argues the trial court erred by finding the city
properly withheld three “quick reference” sheets, an equipment
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HODAI v. CITY OF TUCSON
Opinion of the Court
authorization form, and a PowerPoint presentation. Hodai
articulated several reasons in the form of questions to support
disclosure: (1) whether TPD officers sought warrants before using
the technology, (2) whether use of the technology forces all cell
phones in the area to register their identity and location, (3) whether
data belonging to third parties is protected, and (4) whether the
government is candid with the courts about the capabilities of the
technology. The trial court recognized these rationales to be
“legitimate and important public purposes,” but irrelevant in this
context because all of the records simply showed how to use the
equipment.
¶10 To support its argument that nondisclosure of the
training materials served the best interests of the state, the city relied
on the affidavit of a special agent with the FBI. The agent stated that
disclosure of information about cell site simulators would “provide
adversaries with critical information about the capabilities,
limitations, and circumstances of their use . . . [and] provide them
the information necessary to develop defensive technology, modify
their behaviors, and otherwise take countermeasures designed to
thwart the use of this technology.”4 He also stated that even minor
details “may reveal more information than their apparent
insignificance suggests because, much like a jigsaw puzzle, each
detail may aid in piecing together other bits of information even
when the individual piece is not of obvious importance in itself.”
Hodai provided no evidence to the trial court to dispute the validity
of the FBI affidavit, which authorized the trial court to accept the
factual statements as uncontested. Cf. GM Dev. Corp. v. Cmty. Am.
Mortg. Corp., 165 Ariz. 1, 5, 795 P.2d 827, 831 (App. 1990) (in
summary judgment context, opposing party’s failure to provide
4The agent also noted the FBI considered information about
the equipment exempt from the federal Freedom of Information Act,
citing 5 U.S.C. § 552(b)(7)(E). That subparagraph, which prevents
disclosure of law enforcement techniques or procedures, has no
equivalent in Arizona’s public records law. See A.R.S. §§ 39-121
through 39-121.03.
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HODAI v. CITY OF TUCSON
Opinion of the Court
competent evidence controverting moving party’s affidavits, facts
alleged may be considered true).
¶11 Because neither Hodai nor his attorney had access to
documents submitted under seal, he could not address the trial
court’s conclusion that the public records only “show how to use the
equipment.” He instead argues, as he did below, that the injury
detailed by the FBI agent was speculative and not specific. Further,
he argues the agent’s testimony did not outweigh the presumption
favoring disclosure, citing Star Publishing Co. v. Pima County
Attorney’s Office, 181 Ariz. 432, 434, 891 P.2d 899, 901 (App. 1994).
But in Star Publishing, the county attorney had not reviewed the
documents in question and refused to produce them because they
“might be protected” by privilege, might be immune from
disclosure, or might impede a pending criminal investigation. Id. at
433-34, 891 P.2d at 900-01.
¶12 In contrast, the potential injury here is sufficiently
specific. An FBI agent experienced with the technology stated that
knowledge of how the equipment works “could easily lead to
development and employment of countermeasures.” That a person
experienced with the technology believes it could be “easily”
thwarted if the information was released is not merely a possible
harm based on a hypothetical situation, but one rooted in
experience. See Ariz. Bd. of Regents v. Phx. Newspapers, Inc., 167 Ariz.
254, 258, 806 P.2d 348, 352 (1991) (evidence that in “some cases”
publicity regarding university presidency candidates resulted in
“lesser qualified, but thicker skinned” candidates satisfied best
interests of state exception).
¶13 Hodai also argues the agent’s affidavit was speculative
because it did not address each item being withheld, again relying
on Star Publishing. There, however, no one had reviewed the
records. 181 Ariz. at 434, 891 P.2d at 901. Here, the city stated in its
answer that the FBI had reviewed the documents. And even if the
FBI agent who drafted the affidavit did not review all the documents
himself, he averred that information about how the specific
technology at issue here worked should not be released and
provided reasons. The city withheld documents to which those
statements applied. Star Publishing does not require the factual
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HODAI v. CITY OF TUCSON
Opinion of the Court
justification and review of documents to occur in a single step.
Therefore, for documents that provide information regarding how
the equipment works, we conclude the trial court could properly
find the best interests of the state outweigh the presumption that
disclosure is required.
¶14 Next, we must determine whether the documents
viewed in camera meet this requirement. The quick reference sheets
and the authorization form contain details about how the equipment
works as well as how to operate it. The PowerPoint presentation,
however, contains general information as well as some technical
details about the equipment. It also provides guidance to law
enforcement about how use of the equipment fits within the broader
context of the rules of criminal procedure, such as obtaining a search
warrant. Thus, the trial court’s conclusion that all information in the
training documents “show[s] how to use the equipment” was clearly
erroneous. See Merryweather v. Pendleton, 91 Ariz. 334, 338, 372 P.2d
335, 338 (1962) (finding is clearly erroneous where “‘reviewing court
on the entire evidence is left with the definite and firm conviction
that a mistake has been committed’”), quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948); Castro v. Ballesteros-Suarez, 222
Ariz. 48, ¶ 11, 213 P.3d 197, 200-01 (App. 2009) (finding of fact
clearly erroneous if unsupported by such substantial evidence as
would allow “‘a reasonable person to reach the trial court’s result’”),
quoting Davis v. Zlatos, 211 Ariz. 519, ¶ 18, 123 P.3d 1156, 1161 (App.
2005); cf. Morgan, 13 Ariz. App. at 195, 475 P.2d at 287 (finding
supported by “no evidence” clearly erroneous).
¶15 The trial court’s broad finding prevented it from
addressing Hodai’s alternative argument that responsive documents
containing both sensitive and non-sensitive information must be
redacted and released. Phx. Newspapers, Inc. v. Ellis, 215 Ariz. 268,
¶¶ 22-23, 159 P.3d 578, 583-84 (App. 2007) (noting portions of
document may be released if confidential information redacted).
The ruling did not address the possibility of redacting documents to
protect the interest of the state. Moreover, apparently unbeknownst
to Hodai, the city provided for in camera inspection a version of the
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Opinion of the Court
PowerPoint with proposed redactions.5 In our review of the records
submitted under seal, we conclude that the city’s proposed
redactions removed information about how Stingray works in
particular instances while disclosing other important information,
such as its use in the justice system. The unredacted information
addresses the specific public policy rationales that the court found
legitimate and important, but does not compromise the ability of the
government to keep secret the technical information about Stingray.
Therefore, we reverse the trial court’s ruling withholding the
training PowerPoint and remand so the court may order disclosure
of the city’s redacted version of the PowerPoint.
Hodai’s Additional Arguments Regarding Training Materials
¶16 Hodai raises three more arguments with regard to the
information sheets and training materials. First, he contends the
trial court erred when it found as an alternative basis to withhold
documents that they “are subject to a qualified privilege to not
disclose sensitive law enforcement investigative techniques.” The
court relied on United States v. Van Horn, 789 F.2d 1492, 1507-08 (11th
Cir. 1986), a criminal disclosure case regarding the government’s
refusal to reveal the location and type of listening devices. The court
determined the government had a qualified privilege not to disclose
information that would allow criminals to thwart surveillance
technology. See id. The privilege was an extension of the state’s
privilege to withhold the identity of confidential informants to
promote effective law enforcement, subject to the right of a
defendant to present a full defense. See Roviaro v. United States, 353
U.S. 53, 59 (1957); accord Ariz. R. Crim. P. 15.4(b)(2) (disclosure of
informant information not required under specified conditions).
¶17 This qualified investigative technique privilege has
been recognized by other federal courts, e.g., United States v. Cintolo,
818 F.2d 980, 1002 & n.13 (1st Cir. 1987), but it has not been adopted
in Arizona. Generally, the privilege has been applied in criminal
5The city’s description of the documents filed did not mention
these redactions, nor did any of its arguments before the court.
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Opinion of the Court
cases to protect the public interest in effective law enforcement by
safeguarding information that if revealed would threaten the future
value of a surveillance technique. See Van Horn, 789 F.2d at 1507-08;
United States v. Rigmaiden, 844 F. Supp. 2d 982, 987 (D. Ariz. 2012). It
requires the court to balance the needs of the government with the
rights of the defendant. See Van Horn, 789 F.2d at 1508; Rigmaiden,
844 F. Supp. 2d at 988-89. This balancing is the functional equivalent
of the “best interests of the state” analysis required when the
government asks the court to preclude disclosure of public records
to protect the state’s interest in effective law enforcement. Griffis,
215 Ariz. 1, ¶ 13, 156 P.3d at 422. Because the balancing test in the
privilege parallels the best-interests analysis already conducted, we
need not consider whether such a privilege exists in Arizona or
should be applied in the context of a public records request.
¶18 Hodai also argues the trial court should have allowed
his counsel to view the documents under seal, and that the
information about how the surveillance technology works is already
publicly known, and therefore is not protected.6 Neither of these
arguments was preserved below, and we do not consider them for
the first time on appeal. See Harris v. Cochise Health Sys., 215 Ariz.
344, ¶ 17, 160 P.3d 223, 228 (App. 2007).
6Hodai is correct that some technical information regarding
the Stingray is already public. See, e.g., Owsley, supra, at 191-94;
Stephanie K. Pell & Christopher Soghoian, Your Secret Stingray’s No
Secret Anymore: The Vanishing Government Monopoly Over Cell Phone
Surveillance and Its Impact on National Security and Consumer Privacy,
28 Harv. J.L. & Tech. 1, 8-13 (2014). However, Hodai did not raise
this argument nor introduce any facts below to support it; moreover,
public availability of a record does mean disclosure is automatically
required. See Scottsdale Unified Sch. Dist. No. 48 of Maricopa Cty. v.
KPNX Broad. Co., 191 Ariz. 297, ¶¶ 3-7, 10-12, 955 P.2d 534, 536-38
(1998) (availability of teacher birth dates from other sources did not
require disclosure by school district).
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Opinion of the Court
Open Case Report and Data Dump Exemplar
¶19 Hodai contends the trial court erred by withholding the
report from an open TPD investigation and an exemplar of a “data
dump” from the use of the equipment during the investigation. As
with the training documents, the city argued to the trial court that
these documents should not be released due to the best interests of
the state. The city does not directly respond to Hodai’s arguments
on appeal.
¶20 “[R]eports of ongoing police investigations are not
generally exempt from our public records law.” Collins, 175 Ariz. at
14, 852 P.2d at 1198. Therefore, the burden was on the city to show
the release of all or part of the file would be detrimental to the best
interests of the state. Id. As above, this required a showing of
specific, material harm. Ellis, 215 Ariz. 268, ¶ 22, 159 P.3d at 583.
¶21 The city relied on the affidavit of TPD Lieutenant Hall,
who stated that, in his “opinion and belief . . . the release of any
information about this case, including the case name, would be
detrimental to and would interfere with the further investigation of
that case.” The trial court found that the ongoing investigation was
“sensitive” and that “any release of records from that would
jeopardize the investigation.”7 Hodai does not contest the veracity
of Hall’s affidavit and the averments within it are not unusual;
therefore, the court’s findings are not clearly erroneous. Moreover,
unlike in Collins, the harm here is specific—even providing the name
or minor details of the investigation would link it to the use of the
equipment, revealing a sensitive investigative technique in an
ongoing case. Cf. 175 Ariz. at 14, 852 P.2d at 1198 (vague assertions
of possible harm insufficient to overcome legal presumption
favoring disclosure).
7Hodai contends the trial court failed to apply the Carlson test
regarding the open investigation, but the context of the court’s
ruling indicates it used the correct test.
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HODAI v. CITY OF TUCSON
Opinion of the Court
¶22 Similarly, although the city argued the data dump
exemplar should be withheld because it is unintelligible without
technical viewing software and has “no independent evidentiary
value,” we agree with the trial court’s conclusion that the data is
sensitive. Even in its raw form, many lines of output contain date
and address information that can be linked to details of the ongoing
investigation. The trial court did not err by withholding the data
dump exemplar because in this context, release of any details of the
open case would result in specific, material harm.
Redactions in Original Production
¶23 Hodai contends the trial court erred by allowing the city
to redact the “names of private business partners” involved in
equipment purchases. Hodai did not raise this argument before the
trial court. We do not consider an argument not adequately
preserved below. Harris, 215 Ariz. 344, ¶ 17, 160 P.3d at 228.
FBI-Related Documents
¶24 Hodai argues the trial court erred by not ordering the
city to furnish “any and all records of communications (i.e., email,
email attachments, faxes, memos, letters) (generated from January 1,
2013 to December 9, 2013) in the possession of any TPD personnel
that pertain in any way to the Federal Bureau of Investigation (FBI).”
Hodai generally contends we should reject the court’s findings that
his search request was overly broad and burdensome.
¶25 The trial court, relying on out-of-state authority8 such as
Capitol Information Association v. Ann Arbor Police, 360 N.W.2d 262,
8Hodai also argues that the trial court’s reliance on out-of-state
cases was improper. Although he is correct that Arizona courts are
not bound by precedent from other states, see State v. Solis, 236 Ariz.
242, ¶ 14, 338 P.3d 982, 987 (App. 2014), our courts may look to cases
from other jurisdictions as persuasive authority. See, e.g., Baseline
Fin. Servs. v. Madison, 229 Ariz. 543, ¶ 13, 278 P.3d 321, 323 (App.
2012). Any error by the trial court in discussing out-of-state cases
despite the presence of on-point Arizona authority was harmless,
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Opinion of the Court
263-64 (Mich. Ct. App. 1984), and Bader v. Bove, 710 N.Y.S.2d 379, 379
(N.Y. App. Div. 2000), found that Hodai had failed to identify the
records sought with reasonable specificity, and thus denied the
request as improper. The court observed that Hodai’s request for all
FBI-related communications would require the city “to search every
record in its possession” that included relevant keywords. The court
also found that “[t]he [c]ity has asked Plaintiff to narrow his
requests but he has refused.”
¶26 Hodai characterizes the trial court’s ruling as denying
his request simply because it was broad and argues that Arizona law
“rejects attempts to automatically limit the public’s ability to inspect
and copy public records based on volume,” citing Star Publishing,
181 Ariz. at 434, 891 P.2d at 901. He also relies on Congress
Elementary School District No. 17 of Yavapai County v. Warren, 227
Ariz. 16, ¶¶ 12, 14, 251 P.3d 395, 398 (App. 2011), for the proposition
that a records request may not be denied simply because compliance
would impose a significant administrative burden on the agency.
“‘Burden’ is not a recognized exception to the Arizona public
records laws,” he maintains.
¶27 Our public records statutes “evince a clear policy
favoring disclosure,” Carlson, 141 Ariz. at 490, 687 P.2d at 1245, and
the burden of proving that “redaction would be so unduly
burdensome . . . that inspection is not warranted” rests with the
party opposing inspection, Judicial Watch, 228 Ariz. 393, ¶ 17, 267
P.3d at 1189. To the extent Hodai maintains that unreasonable
administrative burden can never be a sufficient reason to deny a
public records request under Arizona law, he is mistaken. As our
supreme court has recognized, “sometimes the benefits of public
disclosure must yield to the burden imposed on . . . the government
itself by disclosure.” London v. Broderick, 206 Ariz. 490, ¶ 9, 80 P.3d
769, 772 (2003); accord Judicial Watch, 228 Ariz. 393, ¶ 17, 267 P.3d at
1189 (“the burden of producing public records can outweigh the
public’s interest in inspecting those records”); Arpaio v. Davis, 221
because the out-of-state cases cited provide the same rule as the
Arizona precedents, as discussed below.
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Opinion of the Court
Ariz. 116, ¶¶ 21-22, 210 P.3d 1287, 1292 (App. 2009) (denial of “‘all-
inclusive, blanket’” records request which would have required
“‘unreasonable expenditure of resources and time’” to fulfill was not
abuse of discretion); cf. Ariz. R. Sup. Ct. 123(c)(1), (f)(4)(A)(i)
(regarding judicial-branch records requests). In determining
whether production poses an unreasonable administrative burden, a
court considers whether the general presumption of disclosure is
overcome by: (1) the resources and time it will take to locate,
compile, and redact the requested materials; (2) the volume of
materials requested; and, (3) the extent to which compliance with
the request will disrupt the agency’s ability to perform its core
functions. See London, 206 Ariz. 490, ¶ 9, 80 P.3d at 772; Judicial
Watch, 228 Ariz. 393, ¶ 18, 267 P.3d at 1189; Arpaio, 221 Ariz. 116,
¶ 20-22, 210 P.3d at 1292; accord Ariz. R. Sup. Ct. 123(f)(4)(A). The
analysis is, at its core, an inquiry into whether “the best interests of
the state in carrying out its legitimate activities outweigh the general
policy of open access.” Carlson, 141 Ariz. at 491, 687 P.2d at 1246.
¶28 Here, the city presented evidence to the trial court that
fulfilling Hodai’s FBI-related communications request would be
unreasonably burdensome, requiring “a search of nearly 1400 email
accounts, and review and redaction of law enforcement sensitive
information” for any FBI-related emails or email attachments
therein. Hodai also specifically requested any FBI-related “faxes”
and “letters.” Faxes and letters are ordinarily in hard copy form,
rendering an electronic keyword search impossible; thus, the court
did not err in suggesting that Hodai’s request would require the city
to perform a time-intensive and costly manual search of all paper
records TPD produced or received during the relevant time period
to locate the requested records. Cf. Bader, 710 N.Y.S.2d at 379(manual search of decades’ worth of paper documents unreasonably
burdensome). The court did not err in finding the city met its
burden of proving that inspection is not warranted because
identifying and redacting all FBI-related communications would be
unreasonably burdensome.9 See, e.g., Judicial Watch, 228 Ariz. 393,
9 Hodaicontends that even if Arizona law does recognize
unreasonable administrative burden as falling within the “best
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¶ 17, 267 P.3d at 1189; accord Capitol Info. Ass’n, 360 N.W.2d at 264
(request for all correspondence between city police and FBI or other
federal law enforcement or investigative agencies during particular
time period was “absurdly overbroad” and would impose
“intolerable administrative burden[]”).
¶29 Hodai’s additional reliance on Star Publishing is
unavailing. The records requested in that case—“the computer
backup tapes of [the Pima County Assessor’s Office] containing all
documents for 1993”—were not unreasonably burdensome to locate
or compile. 181 Ariz. at 433, 891 P.2d at 900. Although they
contained voluminous electronic records, the backup tapes
themselves were readily at hand, such that the administrative cost of
actual production would have been low. 10 See id. (tapes already
compiled and transferred to agency before request show
compilation and transfer not unreasonably burdensome). Where
requested records are readily identifiable, as were the backup tapes,
the agency may not deny the request merely because the records
contain a large quantity of information. See id. at 432, 891 P.2d at
901. But that is not the issue before us. Here, the trial court found
that the requested FBI-related communications were not readily
identifiable to begin with, and its ruling was not erroneous.
interests of the state” exception, the public’s strong interests in
privacy and Fourth Amendment protections regarding the use of the
equipment, as well as public oversight and transparency, outweigh
the burden in this case. While there are important interests at stake,
a request for all documents referencing the FBI is not reasonably
focused on protecting those interests.
10Additionally,the defendant in Star Publishing failed to point
to or provide evidence of any specific risks that would result from
the disclosure of any specific files on the backup tapes, and thus
forfeited any argument about the administrative burden of redacting
the voluminous records on the tapes. See 181 Ariz. at 433-34, 891
P.2d at 900-01.
15
HODAI v. CITY OF TUCSON
Opinion of the Court
Adequacy of Search
¶30 Hodai argues the trial court erred by finding the
defendants had performed an adequate search for the requested
documents. The city has the initial burden to show it adequately
searched for responsive records. Phx. New Times, L.L.C. v. Arpaio,
217 Ariz. 533, ¶ 16, 177 P.3d 275, 281 (App. 2008). “‘In discharging
this burden, the agency may rely on affidavits or declarations that
provide reasonable detail of the scope of the search.’” Id., quoting
Rugiero v. U.S. Dep’t of Justice, 257 F.3d 534, 547 (6th Cir. 2001).
¶31 The city relied on averments in its answer, which was
verified by TPD Lieutenant Hall, and his affidavit that provides
foundation for his knowledge of the facts in question. Hall’s
affidavit states he was primarily responsible for use and
maintenance of the equipment, he had attended Harris training, and
he “was responsible for determining when and under what
conditions the equipment would be utilized.” The court adopted as
true the uncontested statements of Hall, which were made directly
in his affidavit or indirectly by verification of the answer:
The City says that it has searched for and
produced all records responsive to
[Hodai’s] requests for records concerning
Harris Corporation and its use of the Harris
Corporation technology. Lieutenant Hall,
who is knowledgeable about the City’s use
of this technology, stated in his affidavit
that he has thoroughly searched for the
records and identified those that exist.
¶32 Relying principally on Phoenix New Times, Hodai posits
that Hall was required to show the design of his search and to
demonstrate that the design was adequate to locate all responsive
records. His reliance is misplaced. Phoenix New Times concerned the
promptness of the agency’s response rather than the adequacy of its
search. 217 Ariz. 533, ¶ 13, 177 P.3d at 280. But to the extent the
court considered the adequacy of the agency search as a factor in
assessing the promptness of the response, it did not adopt the strict
showing Hodai contends we should recognize. Id. ¶¶ 23-25. Rather,
16
HODAI v. CITY OF TUCSON
Opinion of the Court
the agency must demonstrate its search was “‘reasonably calculated
to uncover all relevant documents.’” Lahr v. Nat’l Transp. Safety Bd.,
569 F.3d 964, 986 (9th Cir. 2009), quoting Zemansky v. EPA, 767 F.2d
569, 571 (9th Cir. 1985).
¶33 Here, the record requests involved a single piece of
equipment, infrequently used, that was maintained and monitored
11
by one TPD officer. The trial court could reasonably conclude that
the statements in the affidavit combined with the verification of
additional statements in the answer were sufficient to meet the city’s
burden to show the search was adequate. Unlike record requests
that involve many employees, multiple agencies, or massive
investigations, see, e.g., Phx. New Times, 217 Ariz. 533, ¶¶ 18, 23, 177
P.3d at 281, 282; Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1479-
80, 1483 (D.C. Cir. 1984) (60,000 pages concerning assassination of
Dr. Martin Luther King, Jr.), a simple search by one person with
knowledge may be sufficient. Additionally, as the court correctly
noted, Hodai had the opportunity to contest Hall’s statements but
did not do so.
¶34 Hodai also argues that because he obtained from the
county attorney documents related to the closed criminal cases that
were not in the files disclosed by the city, its search must have been
inadequate. But Lieutenant Hall’s affidavit refers to documents in
the closed cases as “reports,” intimating there are full case files that
were not produced. Moreover, assuming functionally equivalent
record requests to the separate agencies, “‘the failure of an agency to
turn up one specific document in its search does not alone render a
search inadequate.’” Lahr, 569 F.3d at 987, quoting Iturralde v.
Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003).
Hodai’s alternative argument does not vitiate the court’s conclusion
that substantial evidence supports the adequacy of the city search.
11Record requests that do not directly involve Stingray, such
as for FBI communications, are discussed in other sections.
17
HODAI v. CITY OF TUCSON
Opinion of the Court
Promptness of Response in Disclosing Closed Case Reports
¶35 Hodai argues on appeal, as he did below, that the four
closed case files produced after he filed suit were not “promptly
furnish[ed]” as required by § 39-121.01(D)(1), constituting wrongful
denial of the records under § 39-121.01(E). The trial court did not
specifically rule on the promptness of the response, but generally
denied all additional relief to Hodai. However, the court did not
consider whether the case files released to Hodai eight to ten months
after the first document request were sufficiently prompt. Whether
a response to a public records request was prompt is an issue we
review de novo, assessing promptness in the context of the
circumstances of the request. McKee v. Peoria Unified Sch. Dist., 236
Ariz. 254, ¶¶ 14-15, 338 P.3d 994, 998 (App. 2014).
¶36 The city does not respond to the argument on appeal.
Failure to respond may be considered a confession of error. In re
1996 Nissan Sentra, 201 Ariz. 114, ¶ 7, 32 P.3d 39, 42 (App. 2001). In
our discretion, however, we address the city’s argument as
presented to the trial court. See Savord v. Morton, 235 Ariz. 256, ¶ 9,
330 P.3d 1013, 1016 (App. 2014).
¶37 The city contended that until Hodai requested
particular criminal case files after he learned in litigation that
Stingray had been used in the investigations, there was no duty to
provide them as “work product” documents showing Stingray’s use.
It relied on Hall’s affidavit in which he opined that because the case
files do not contain “any reference to the technology,” they “are not
public records that respond to the Plaintiff’s requests.”
¶38 First, we reject the proposition that unless Stingray was
referenced in a particular investigation, the case file would be
shielded from a public records request. Cf. Nation Magazine, Wash.
Bureau v. U.S. Customs Serv., 71 F.3d 885, 889-90 (D.C. Cir. 1995)
(narrow search of agency index insufficient where responsive
documents not in index also existed). We note that officers were
instructed to “not mention [Stingray] in any supplement or
report”—or even to discuss it with county or state prosecutors. This
instruction would have shielded disclosure of a public record
without the assertion of a recognized exception.
18
HODAI v. CITY OF TUCSON
Opinion of the Court
¶39 Further, there is no indication in the record that it
would have been difficult for TPD to promptly locate and disclose
the records. As Hall acknowledged, he was the person “primarily
responsible for the use and maintenance” of Stingray, and in that
capacity could identify based on personal knowledge those
investigations in which it had been used. Even if we assume that
Hodai’s records request for “all records . . . . that pertain in any way
to ‘Stingray’ or ‘Stingray II’ cell phone tracking equipment” was
ambiguous, at a minimum TPD should have clarified whether
criminal investigations relying on Stingray were among the
requested documents. See Jarvik v. CIA, 741 F. Supp. 2d 106, 115
(D.D.C. 2010) (“An agency can ask a [records] requestor to clarify or
narrow an overly broad request.”). Without explanation from the
city regarding the facts of the delay, such as time needed to redact or
difficulty in locating the documents, eight to ten months is not
prompt. See Phx. New Times, 217 Ariz. 533, ¶¶ 20-25, 177 P.3d at 282(143 days not prompt where agency assumed it had transferred
responsive documents); cf. McKee, 236 Ariz. 254, ¶¶ 20-21, 338 P.3d
at 999 (disclosure within twenty-four days prompt where many
documents were requested and agency needed to gather from
different departments). The trial court therefore erred in its implicit
finding that the four case files were promptly produced. 12
Attorney Fees
¶40 Hodai contends the trial court abused its discretion by
failing to award attorney fees under A.R.S. § 39-121.02.13 Although
Hodai requested attorney fees in both his complaint and his final
12Hodai also appears to argue the other documents the city
lodged for review in camera were not promptly produced and were
therefore wrongly denied. We need not decide whether the release
of any of these documents was “prompt,” because they have not
been released at all.
13Hodai also requests fees pursuant to other statutes but he
never raised these arguments below. We therefore do not address
them on appeal. See Harris, 215 Ariz. 344, ¶ 17, 160 P.3d at 228.
19
HODAI v. CITY OF TUCSON
Opinion of the Court
motion before the trial court, the court did not explicitly rule on the
issue. When we suspended the appeal to allow entry of a signed
written order, both parties agreed final judgment should be entered
and the court returned a judgment containing language of finality
and citation to Ariz. R. Civ. P. 54(c). On appeal, both parties treat
the attorney fee request as denied. We do the same.
¶41 Under § 39-121.02(B), “[t]he court may award attorney
fees and other legal costs that are reasonably incurred in any action
under this article if the person seeking public records has
substantially prevailed.” Both the determination that the petitioner
substantially prevailed and the award of fees after making such a
finding are at the discretion of the trial court. Democratic Party of
Pima Cty. v. Ford, 228 Ariz. 545, ¶¶ 8-10, 269 P.3d 721, 723-24 (App.
2012). Because we reverse the trial court’s rulings denying
disclosure of the redacted PowerPoint and concluding that the city
acted promptly in disclosing the closed files, we remand to allow the
court to determine in the first instance whether Hodai substantially
prevailed and whether to award attorney fees.
¶42 Hodai asks us to grant attorney fees and costs on appeal
under § 39-121.02(B). We deny attorney fees without prejudice for
Hodai to request in the trial court his fees incurred in this appeal.
We award costs on appeal pursuant to A.R.S. § 12-341 upon
compliance with Rule 21, Ariz. R. Civ. App. P.
Disposition
¶43 For the foregoing reasons, we affirm in part and reverse
in part. We remand to allow the trial court to order disclosure of the
redacted version of the PowerPoint and to determine whether to
award attorney fees in light of the disclosure of new materials, as
well as the promptness of the city’s response.
20