ACES AND EIGHTS: Appeals court deals Joe Arpaio a losing hand in New Times lawsuit over public docs.
We fought the law, and we won. Again. Tuesday the Arizona Court of Appeals reversed a lower court's ruling, finding that the Maricopa County Sheriff's Office "wrongfully denied New Times access to public records," sending the case back to superior court "for a further determination on the issue of attorney's fees."
That's because New Times asked for attorney fees in this case which stretches back to 2004, when Nickel Bag Joe was running for reelection, and then New Times scribe John Dougherty was dig-dig-digging away for info on various issues relating to the county's top lawman. As described in New Times editor Rick Barrs' column, "We Sue the Coward of the County" (September 30, 2004), Dougherty had filed numerous public records requests with the MCSO. He had asked for the unsealing of docs on the smear Arpaio's henchmen perpetuated against Joe's 2004 rival for the Republican nomination Dan Saban, for records of proposed fish pond to be constructed near Tent City, for personnel files on certain MCSO employees, records on deceased inmates, and on and on.
But in defiance of AZ public records law, which plainly states that custodians of public records must "promptly furnish such copies, printouts or photographs" to those who ask for them, the Sheriff's highly-paid media machine stonewalled New Times. Dougherty asked Arpaio publicly when he would respond to New Times' records requests. In reply, Arpaio had his goons remove Dougherty from his presence, and told another reporter that Dougherty's question should be written up as a threat.
Days prior to the '04 Republican primary, Dougherty ran into Joe flack Lisa Allen MacPherson at a downtown press conference for Dan Saban and again asked when the public records he had requested would be released.
She informed him they would never be released. When Dougherty wondered why, MacPherson shot back, "We don't recognize your newspaper as a legitimate newspaper."
Dougherty told her that, according to the law, any citizen could ask to look at these same docs, it didn't matter who. The saucy PR lady spat, "So sue us!"
Sure enough, New Times was forced to sue the Sheriff on September 23, 2004, months after Dougherty's initial public records request in May. Early in October of 2004, the MCSO finally, grudgingly gave up the docs we'd requested. We'd had to go to court to get "public" documents, documents the Sheriff's office should have been able to turn over in short order. New Times demanded legal fees for having to force the MCSO to comply with the law. The superior court rejected our claim. We appealed. And now an appeals court has vacated the lower court's finding, declaring that, "It is undisputed in this case that the New Times was entitled to the records eventually provided" after we filed our suit.
The appeals court examined nine requests in dispute, and found that in only one case did the MCSO act appropriately. Otherwise, the excuses of PR flacks Lisa Allen MacPherson and Paul Chagolla were deemed insufficient. Basically, in each of these cases, MacPherson, et al. blew us off, sometimes not responding to our requests because they were mad at us. They acted like impudent little children looking to shirk their responsibilities any way they could.
In one case, MacPherson testified in deposition that she hadn't read Dougherty's request carefully, and that she didn't respond to his request for 141 days because she was incensed with Dougherty, and "didn't really want to communicate with him during that period of time." Her highly unprofessional behavior was repeated again and again. In another case, it took MacPherson 108 days to cough up a mere 11 pages of docs. Once, when asked about the death of an inmate on a specific day, she wrongly informed New Times that there had been no inmate death on that date. She later discovered otherwise, but lamely failed to inform us because she claimed that she didn't think we'd be interested.
This ongoing dodge of every New Times request, sometimes delaying a response indefinitely while the same documents were given to other news outlets, is contrary to the spirit and letter of Arizona law, which states that if the court determines that a person was wrongfully denied access, and that "the custodian of such public record acted in bad faith, or in an arbitrary or capricious manner," then legal costs may be awarded the petitioner.
The MCSO's actions toward New Times were the very definition of bad faith, and were both arbitrary and capricious. New Times was wrongfully denied access, and the court ruled that, "we vacate the superior court's denial of attorney's fees to the New Times and its award of costs to MCSO." The appeals panel then remanded the case back to the lower court, leaving it to that court to determine legal costs to be awarded.
What's particularly galling is that the MCSO could have avoided this whole legal wrangle and its cost by just following the statute and complying with New Times' lawful requests from the start. But as is always the case with the MCSO, they elected to be petty and vindictive, even when the law instructed them to comply. With Arpaio and MCSO brass, it seems, we have an entire class of individuals who believe the law does not apply to them.
How much will the appeal cost the taxpayer? This has yet to be determined.
“It’s unfortunate,” said New Times counsel Steve Suskin, “that the Sheriff’s office’s unwillingness to comply with Arizona public records law might potentially cost county taxpayers tens of thousands of dollars.”
You can read the entire decision, here. Irony of ironies, none other than legal beaglette Michele Iafrate of Iafrate & Associates lost the case on appeal for the Sheriff. You may recall that Iafrate complained to the MCSO about my colleague Ray Stern after arguing with him in her law offices about public records law. The MCSO then arbitrarily and capriciously hit Stern with a misdemeanor disorderly conduct charge. Stern's still fighting the ticket. His cover story "Information Blockade" is a must read on the MCSO's pattern of such abuses of the public records law.
Finally, it's important to note the domino effect of Dougherty's public records requests back in 2004, some of which involved Arpaio's real-estate holdings. This led to a column in which Dougherty revealed Arpaio's home address. This in turn led to a secret grand jury led by special prosecutor Dennis Wilenchik that sought to criminally indict New Times. That led to the revelation of Wilenchik's overbroad and unconstitutional subpoena, and the arrests of New Times' founders Mike Lacey and Jim Larkin, which blew up in the faces of Arpaio and County Attorney Andrew Thomas, engendering a fierce public backlash that threatens the reelections of both men to this day.