Are disabled Arizonans being protected?

Why no one knows

Amy Silverman is a serious journalist with a long track record and a good reputation in Arizona.

As executive producer of KJZZ radio’s “The Show” and as the mother of a child with intellectual and developmental disabilities, she has a keen interest in the wellbeing of Arizona’s more than 45,000 people with these disabilities.

Silverman and her media partners at the Arizona Daily Star chose to examine the job our state does protecting this population from abuse and neglect.

When they sought records related to closed-case investigations by the Arizona Department of Economic Security, the state refused them access on the grounds that it would violate the privacy of disabled people.

Silverman and the Daily Star were willing to accept records with names and address redacted, but DES still declined, Howard Fischer of Capitol Media Services reported.

When mainstream media and responsible journalists like Amy Silverman cannot access public records on important government services, something is broken in state government.

So, Silverman and the Daily Star sued the state.

In response, state lawyers motioned to dismiss, but Maricopa County Superior Court Judge Sally Duncan refused. She ordered the agency to disclose the records, which is a good thing.

Undeterred, the state appealed the ruling, and a three-judge panel of the Arizona Court of Appeals struggled to interpret a law that is hazy in the way it balances the privacy interests of disabled people with those of public watchdogs.

Writing for the appellate court, Judge Brian Furuya noted that a carve-out for Adult Protective Services, the wing of DES that serves many disabled people, allows the state to shield these records from public examination because of their “sensitive nature.”

However, there are exceptions, he noted, and one is “bona fide research.”

The central question has become this: Does journalism amount to “bona fide research”?

It’s not an easy one to answer, Furuya noted, because defining “research” too broadly would allow anyone to obtain these sensitive records on intellectually disabled Arizonans.

We don’t pay judges to write the laws. We pay them to interpret them.

And if the ambiguity of these statutes prevents the free press from reporting on the significant role government plays as it works to safeguard a vulnerable population, then the law needs changing.

The Court of Appeals referred the case back to the trial court to provide clarity: What constitutes “bona fide research?”

As that question simmers, we’ll take this opportunity to remind Arizona state government about the role of a free press.

To do that, we’ll quote the U.S. government, which describes “the role of media in democracy” in two parts:

1. To ensure “that citizens make responsible, informed choices rather than acting out of ignorance or misinformation.”

2. To serve as “a ‘checking function’ by ensuring that elected representatives uphold their oaths of office and carry out the wishes of those who elected them.”

Today’s debate and legal proceedings echo back to 2008 and fight to release public records that tracked another vulnerable population’s wellbeing.

In that year, Arizona Republican lawmakers Jonathan Paton and Kirk Adams were challenging the then-named Child Protective Services – Arizona’s child welfare agency – to disclose more information about cases in which children were badly abused and neglected.

The two representatives successfully won passage of a new law that required more transparency and media access to these records after two children were tortured to death in Tucson while CPS caseworkers were sleeping on the job.

The new transparency led to greater reporting and eventually reform, as the agency restructured and improved as today’s Arizona Department of Child Safety.

The same principles apply here with Adult Protective Services.

The free press has a watchdog role as the state serves people with intellectual and developmental disabilities.

If the law isn’t working to provide reporters the records they need to tell these stories, we need a new law.