DPS broke law delaying Republic’s request, judge rules
A Superior Court judge has ruled that the Arizona Department of Public Safety violated the state’s public records law repeatedly when handling requests by The Arizona Republic for information about the department’s Border Strike Force.
In one instance, the department took 18 months to comply with a request for an updated list of Border Strike force investigations.
Spending that much time failed the statutory requirement that records be produced “promptly,” the judge ruled.
The Republic made the request for the list of cases in September 2019. The DPS did not provide that list until March 2021, and only did so after the newspaper’s attorney notified the state that he was beginning legal action against the department.
In another case, The Republic filed a request under public records law for documents that would show activities of the Strike Force members. A DPS officer advised that timesheets might reveal this information.
But when the DPS later released hundreds of those records to The Republic, the timesheets showed only hours worked, with no consistent details about what officers did during their workdays.
Judge Randall Warner, ruling in The Republic’s favor on Monday, ordered the DPS to either produce those records, or to acknowledge that such records do not exist. He also concluded that the department had no acceptable rationale for its delays.
“Ultimately,” Warner wrote, “the statute requires DPS to promptly respond to public records requests.”
David Bodney, the newspaper’s attorney, said that the DPS’ 18-month delay was the most egregious he had seen in his legal career.
The DPS said the reasons for the delay included the COVID-19 pandemic and handling of requests related to officer-related shootings, including one that sparked Black Lives Matter protests. Bodney said he was glad the judge dismissed those reasons as a delay for fulfilling the request, which predated those events by months.
“They invoke serious chapters of our nation’s suffering over the last year and a half to justify many months of disregard of this public records request,” he said. “They are just plainly spurious arguments and the judge dispensed with them readily.”
Greg Burton, executive editor of the newspaper, said, “Ultimately this is a victory for the people of Arizona. When public agencies flout the public records law with such impunity, newsrooms are forced to turn to the courts. Most people won’t have the resources to pursue this kind of legal action, so we fight on their behalf. We will never give up that fight for transparency.”
The 18-month delay
The Republic had first received a spreadsheet listing Border Strike Force cases in 2018. That document, obtained under the Public Records Law, was part of reporting that sought to determine how the much-ballyhooed force had operated.
During 2018, Gov. Doug Ducey frequently mentioned the Border Strike Force during official speeches and news releases and campaign commercials. The Strike Force has been funded with $100 million since its inception in 2015.
That spreadsheet showed that although Ducey said the Border Strike Force was organized to combat drug smuggling, many of the drug busts involved minuscule amounts not indicative of smuggling and that more cases took place in the urban counties that house Phoenix and Tucson and not in the four Arizona counties that share a border with Mexico.
The series of stories that peeled back the cover of the Border Strike Force was named the Story of the Year by the Arizona Newspapers Association.
The Republic pursued a follow-up and requested an updated list of cases on Sept. 30, 2019. Although the DPS had provided the previous spreadsheet within a month, The Republic would not receive the new spreadsheet until March 2021.
The DPS, in court filings, blamed the delay on staffing issues, the COVID-19 pandemic and other requests that took priority, including those relating to the shooting by a highway patrolman of Dion Johnson, an unarmed man whose death sparked protests during the summer of 2020.
It also said in filings that the records were delayed for months after being sent to the governor’s office for review.
When the department ultimately provided the updated list, more than a year later, the title of the file contained the word, in capital letters, “redacted” — though it did not specify, or make apparent in the file, what information was now being redacted.
Judge’s ruling
Warner, in ruling on the 18-month delay for the first set of records, said the DPS was already violating the law well before the pandemic hit.
“That six-month delay before DPS even began reviewing the documents itself was itself not prompt, and it was unaffected by the pandemic,” Warner wrote.
The judge also looked askance at the nearly six-month delay caused by Ducey’s office reviewing the records. Warner said such review was “not inconsistent with Arizona’s public records law, it cannot override the legislative requirement that public records be promptly produced.”
At a hearing on Friday, an Arizona assistant attorney general said that a policy required the DPS to submit records for review, but that policy had since changed.
The governor’s office has not yet replied to The Republic’s request, from last week, for any materials related to that policy. The governor’s office did not respond to a request to comment for this story on that policy.
Additionally, The Republic, in February, asked for documents that would show activities of the Strike Force members. In a phone conversation, a public information officer told a reporter that the timecards, known as the weeklies, would contain that information.
The newspaper paid hundreds of dollars to view the records, at the DPS’ rate of $15 per copy of each digital disc.
But, when those timecards were produced, they contained only a listing of hours worked. The only detailed information came in a field that justified overtime pay, which at times included working security at Arizona Cardinals games. Officers’ regular hours had no details.
In his ruling, Warner demanded that the DPS state whether it had any documents that would — unlike the timecards it had produced — show the activities of personnel assigned to the Border Strike Force.
Warner said that an agency can helpfully point reporters and members of the public to documents that might contain information they want. “But producing alternative records only satisfied the request if those records contain the requested information,” he wrote.
Warner also ordered the DPS to explain why certain information in the spreadsheet it provided was redacted.
The judge gave the DPS 30 days to comply.
Bodney said the judge ordered the DPS to follow the law, which the agency should have done in the first place.
“There’s no place under Arizona law for the utter disregard for a person’s request,” Bodney said, “much less any tolerance for an agency that sends requestors on a wild and expensive goose chase.”