October 18, 2006 - The Oro Valley Town Council wants to create a new public records policy that seeks to further protect the privacy rights of town employees.

Town attorney Melinda Garrahan proposed a policy to the council at its Oct. 11 special session that identifies types of records and information the town will readily release, those that it will automatically withhold and records for which it will weigh the public's right to know against the best interest of the town or its employees.

Garrahan said the policy is necessary because the town needs to protect the privacy of its employees. She also said releasing employee personnel information could make it difficult for managers to evaluate employees, discourage internal and external complaints within town staff and harm employees' reputations.

"There seems to be misapprehension in the media and perhaps in some of the public that access to public records is absolute and that public employees have no expectation of privacy in any of the information in their file," Garrahan told the council. "That's simply incorrect."

The Arizona Public Records Law says that public records shall be open to inspection by any person at any time during government office hours. But the Arizona Supreme Court has ruled that documents can be withheld if confidentiality or privacy rights outweigh the public's right to know, or if disclosure is against the best interest of the state.

But when using the privacy or confidentiality argument to withhold public documents, the Arizona Supreme Court has ruled that the record custodian must "specifically demonstrate" that the release of the records would violate rights or cause "specific, material harm" to the state in order to overcome the public's right to receive public records.

Garrahan's proposed policy says that disclosing personnel files, personnel investigation records and police department internal affairs records would constitute an invasion of privacy.

She also told the council she often gets requests and is unsure what to do with them. She recommended the town implement a policy to help her deal with requests.

After discussion, the council voted 5-1 in favor of creating a policy, asking Garrahan to make some minor changes and bring it back to the council for authorization. Councilwoman Paula Abbott was the dissenting vote, saying she could not support a policy of secrecy. Councilmen Terry Parish was not at the meeting.

If Garrahan weighs the public's right to know against the best interest of the town or its employee, and she decides that the privacy rights trump the public's right to know, she said the requester could sue the town. Or, in some cases, she said she could take the case to a judge to get a declaratory judgment.

A declaratory judgment determines the rights of parties without ordering anything be done or awarding damages, according to the online legal dictionary, www.law.com.

Also in the policy the council is poised to adopt, Garrahan suggested a blanket ban on the release of social security numbers, birthdates, home addresses, home telephone numbers, benefits information, health information, information about family members and "such other information as may be clearly protected from disclosure pursuant statute or court decision."

Garrahan brought the public records policy to the council after private investigator Andrew Sowards of Inter-State Investigative Services, Inc., requested the personnel records and internal affairs investigations on two Oro Valley police officers.

The EXPLORER and the Arizona Daily Star also have since requested the same documents.

Although there was some confusion at the Oct. 11 session, Garrahan released the documents on Monday to the private investigator and to the EXPLORER. But she said she was going to redact, or withhold, the information she deemed private or is not in the town's interest to release. The record's were not available before the EXPLORER'S press deadline.

The town council at the meeting gave Garrahan the OK to ask a judge to issue a declaratory judgment on the matter if Sowards or the two newspapers object to the redactions.

Garrahan spent most of the time arguing to the council that court cases have shown that public employees have privacy rights.

She cited a 1998 case, Bolm v. Custodian of Records of Tucson Police Department, that ruled that the police department did not have to release internal affairs records or personnel evaluations during an ongoing investigation. But in that ruling, the court also told the city not to create any blanket rules regarding police personnel records, saying each request must be decided on a case-by-case basis.

Garrahan also cited Scottsdale Unified School District v. KPNX Broad Co., a case in which the court decided the school district did not have to release the birthdates of all school employees, as an example of the court upholding general privacy interests without finding specific harm.

Garrahan said when requests are made for personnel files, she will determine the public's legitimate interest.

"The court said, 'hey, just because you want some information, doesn't mean you get it ā€¦ it's not just simply wanting to know,'" Garrahan said at the meeting. "The court has said there's got to be some reason beyond you simply wanting to know."

Several council members said they did not think the public should be able to go on "fishing expeditions" in public records and should tell the town specifically why they want the documents.

David Bodney, whose Phoenix firm Steptoe and Johnson represents the Arizona Newspapers Association, of which the EXPLORER is a member, said the law does not require a requester to give any reason for inspecting a public record.

"But when the courts are faced with difficult decisions, it sometimes becomes necessary to probe the requesters purpose as a means of weighing it against the public body's interest of withholding information," Bodney said.

Bodney said the council's blanket policy of withholding some types of records such as home addresses and telephone numbers, as in the proposed records release policy, is not good policy, and should be addressed on a case-by-case basis.

"That while a blanket blockage may be easy to administer, it lacks flexibility and could well result in denying the public access to important information about the performance of town officials," Bodney said. "There may well be instances when the public would best be served by sharing information about the identity of a town official in a clear and unmistakable way, in order to promote accurate reporting."

Bodney also said the town's proposed policy "could turn public policy on its head" if the council authorizes Garrahan to sue, or go to a judge for a declaratory judgment anytime she thinks the requester will disagree with a disclosure decision and may be planning to sue the town.

"If she forces requesters to defend themselves in declaratory judgment, they may file a counter claim under the public records law," Bodney said. "The town would be conducting itself in a needlessly confrontational way. It could be costly to the town, not only in a public relations way ā€¦ but also to the coffers of the town."

After the council's special session, Councilman Al Kunisch said the town has nothing to hide, but added he "doesn't think it's right to just pass out public records." He said "some" performance evaluations should be released.

Further, he said anytime someone wants police documents from an internal affairs investigation, he or she "should have to go to court to get them."

The Arizona Legislature in 1987, and four other times in the past 21 years, has considered but rejected laws that would have exempted "personnel, medical or similar files" from the public records law.

Cox v. Collins in 1993 said "generalized claims to privacy or confidentiality do not meet the standard required for showing the "substantial" public harm required to permit the town to withhold public records from inspection.

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