Division Two has been busy with public records denials. In Sierra Club v. Salt River Project, the appellate court considered whether the Salt River Project Agricultural Improvement and Power District (SRP) is a public entity under the public records statute. The court next considered whether the requested information was protected as competitive activity information unde3r A.R.S. § 30-805. Through several public records requests, The Sierra Club sought information regarding the expansion of the Coolidge Generating Station. Sierra Club opposed the expansion and while doing so, learned there was a study with an external consultant regarding the expansion. SRP produced presentation slides and documents but withheld others. The slides were produced under a protective order limiting the Sierra Club’s use of the slides to the dispute before the corporation commission and the issuance of a certificate of environmental compatibility. Sierra Club asked that the slides be re-disclosed as a public record, and SRP ignored the request. In the trial court and on appeal, SRP contended it is not a public body because it is not a “tax-supported district” as defined under the Public Records Law, A.R.S. § 39-121.01(A)(2). SRP further contended the information fell under the competitive activity exception. The appellate court followed the rules of the road on statutory interpretation holding SRP is a public entity subject to the public records law. As for the competitive activity information exception, the court rejected SRP’s contention that a separate statute A.R.S. § 40-204 (a confidentiality provision for information provide to the corporation commission by public service corporations) is swept up in the sensitive information exception. The court of appeals remanded the case because the trial court did not examine and make factual findings as to whether the competitive activity statute applies to each of the records. One bothersome point about this opinion. The court cited dictionaries for the words “similar,” “entity,” “advantage,” and “any.” Why? We have previously expressed criticism when courts unnecessarily cite dictionary definitions and use these as scaffolding when constructing an opinion.

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The second public records case is Abraham v. Ariz. Bd. of Regents. While public records are entitled to a presumption of disclosure, records may be withheld or redacted based on “countervailing interests of confidentiality, privacy or the best interests of the state.” That language comes from Carlson v. Pima County. Abraham sought numerous records of committee meetings, hiring practices, etc.  In response, the university informed the court that a recording of one of the committee meetings had been destroyed. Any damage remedy for this, however, was subject to dismissal because Abraham never filed a notice of claim. Additionally, challenging the university’s response to the withholding of other records must be within the one-year statute of limitations for actions against governmental entities. Only one denial was within the statute of limitations. After the court made its way through procedural issues, the court reached the substantive issue of the countervailing interests of confidentiality, privacy, or best interests of the state. The court directed trial courts when conducting this analysis to review the sufficiency and specificity of harm and then address whether individual records were withheld to prevent that specific harm.  The court held the reasons for withholding information met these criteria. This included surveys, job applications, and other records regarding the hiring of candidates. The court then denied Abraham’s fee request that he was entitled to fees because he had obtained some additional records before litigation after challenging the initial denial letters. Abraham lost the litigated issues and was not a prevailing party. The opinion is far too long. We do not need such detailed explanation of the court’s reasoning.

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This abuse of process claim was untimely under A.R.S. § 12-821.01. Plaintiff contended her cause of action did not accrue until the United States Supreme Court denied certiorari in her separate federal litigation. At that time, she alleged she suffered emotional distress. The underlying basis of her “abuse of process” claim was that there was an issue with body-cam footage produced in the federal court litigation. The court of appeals holds she had notice of potential wrongdoing and notice to investigate. Regardless of when she claims she first suffered emotional distress, pursuing the federal court litigation and appeal involved expenses. A cause of action accrues when the damaged party knows or reasonably knows the cause, source, act etc that caused or contributed to damages and does not depend on any category of specific damages such as “emotional distress.” Otherwise, plaintiffs could easily plead around the defense. The court of appeals also dispensed with plaintiff’s procedural argument that the affirmative defense was untimely when the defendant had not yet answered the complaint and could raise the defense in its answer or motion for judgment on the pleadings. The court also rejected applying the continuing tort doctrine because plaintiff alleged one act of wrongdoing – providing altered evidence in the district court litigation – not a continuing tort.

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Trial court vacated an arbitration award, and now the court of appeals vacates the trial court order because it “hinges on unsupported findings.”  We believe appellate courts should be more magnanimous with trial courts even when wrong and avoid calling a ruling unhinged. Contractor sued subcontractor for failure to complete its work including damages for delayed completion. The parties agreed to arbitration. Contractor produced a ton of documents but objected to producing others. A few days before the arbitration, subcontractor raised the discovery issue. Arbitration went forward as scheduled, and the arbitrator issued an award that addressed the nondisclosure arguments and penalized the contractor for failing to disclose information on the delay damages. The arbitrator, nonetheless, awarded contractor damages based on subcontractor’s abandonment of work plus fees and costs. Contractor moved to confirm the arbitration award, and subcontractor objected. The superior court vacated the arbitration award based on the nondisclosure. Court of appeals holds challenging an arbitration award requires more than a late argument on nondisclosure. Challenger must point to corruption, fraud, or undue means. While A.R.S. 12-3023(A)(3) permits a trial court to vacate an arbitration award if the arbitrator refused to postpone the hearing on showing of sufficient cause, subcontractor never requested a postponement. There was some dispute on this, but under the AAA rules, subcontractor waived its request by not objecting in writing. Regardless, the arbitrator acted within his discretion by proceeding with the hearing.

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