Charter schools are subject to the Arizona Public Records Law.[1]  Failure to follow the law can result in the school being sued for damages in court, with the school having to pay attorneys’ fees for representation in court, and perhaps the attorneys’ fees of the requesting party.  Failure to comply with the public records law may cost a school thousands of dollars, as well as having to release the requested public records.

Here is a scenario: A gentleman comes into your school and asks to see the records showing the salaries of all teachers at the school and a copy of the agenda from the last board meeting.  He does not state his name and does not say why he wants to inspect these records.  He says his request is not for a commercial purpose.  Are you required to provide inspection of the records?  Under most circumstances, the answer is yes. The following is a summary of the basic requirements of the law in Arizona.

What is a public record? 

Public records are defined as[2]:

all books, papers, maps, photographs or other documentary materials, regardless of physical form or characteristics, including prints or copies of such items produced or reproduced on film or electronic media pursuant to A. R. S. § 41-151.16, made or received by any governmental agency in pursuance of law or in connection with the transaction of public business and preserved or appropriate for preservation by the agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations or other activities of the government, or because of the informational and historical value of data contained in the record, and includes records that are made confidential by statute.

Examples of public records are policies and procedures, case files, electronic mail, certificates, agendas, salaries, governing board minutes, annual reports, telephone bills, personnel records, calendars, travel claims, and reports of revenue and expenditures.  This list is not all inclusive but is intended to show the wide range of documents that are considered public records.

What is not a public record? 

In most cases, drafts, extra copies, private notes, and electronic mail with content unrelated to school business are not considered to be a public record.

What is a public record request?

In Arizona, “Public records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.”[3]  Any member of the public can submit a request to view the schools public records.  Schools should require the request to be in writing and should require the requestor to state whether the request is for commercial or non-commercial purposes.[4]   It is a good idea to institute a school-wide policy that all public record requests must be submitted in writing.

The public has a right to inspect public records during regular office hours, has a right to be furnished copies (subject to payment of a fee), and has the right to receive a prompt response to a request.  A “prompt response” is not defined by statute and depends on what is reasonable under the circumstances.  In considering whether the public body’s response is “prompt,” it is necessary to look at the nature of the request, the content of the records, and the location of the records.  Inconvenience alone is not sufficient to delay the school’s response to a request.

What records may be withheld from a request? 

Records may be withheld if they are confidential by statute or if there is a legitimate consideration of privacy and the best interests of the State that would prevent disclosure.[5]  There are over 300 Arizona statutes that address the confidentiality of records.  Examples of confidential records that would not be subject to disclosure include, but are not limited to, medical records, student education records, and social security numbers of employees.

Does marking or stamping a record determine whether it is disclosed or not?

No, merely marking a document “sensitive” or “confidential” does not provide any basis for withholding the record from release.  It is the content of the document that determines whether it is a public record that must be released.

What fees may be imposed on the requester?

For requests submitted for a non-commercial purpose, schools may charge the requestor for the cost of reproducing copies, including a reasonable amount for the equipment and personnel used in making the copies.[6]  However, schools cannot charge for the time spent searching for a requested record.  Schools may require the requestor to pay in advance for copying and mailing charges; however, the cost must be reasonable.

If the request for public records is made for a commercial purpose[7], you may charge a fee for obtaining the record, the cost of time and materials and personnel used in reproducing the record, and the value of the information contained in the requested records on the commercial market.

Please note, public records requests can be a complicated area of law; and all schools are encouraged to seek specific legal advice regarding compliance with any specific requests that are made of the school.

 

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Charter Schools are Subject to the Arizona Public Records Law,  or any other education law matters, please feel free to contact Education Law Attorney, Kimberly R. Davis at 480.461.5387, log on to www.udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.

 

[1] A.R.S. § 39-121 et seq.

[2] A.R.S. § 41-151.18.

[3] A.R.S. § 39.121.

[4] If the request is made for a commercial purpose, the person requesting must provide a statement setting forth the commercial purpose.   A.R.S. § 39-121.03(A).

[5] See Scottsdale Unified Sch. Dist. No. 48 v. KPNX Broad. Co., 191 Ariz. 297, 300, ¶ 9, 955 P.2d 534, 537 (1998) (confidentiality, privacy, or other “best interests of the state” can outweigh the public’s right of inspection under the Public Records Law, but the State has the burden of overcoming the legal presumption favoring disclosure.); U.S. v. Loughner, 807 F.Supp.2d 828, 835 (D. Ariz. 2011) (criminal defendant’s Sixth Amendment right to fair trial may overcome duty to disclose otherwise public documents under Arizona public records law).

[6] A.R.S. § 39-121.01.

[7] “commercial purpose” means the use of a public record for the purpose of sale or resale or for the purpose of producing a document containing all or part of the copy, printout or photograph for sale or the obtaining of names and addresses from public records for the purpose of solicitation or the sale of names and addresses to another for the purpose of solicitation or for any purpose in which the purchaser can reasonably anticipate the receipt of monetary gain from the direct or indirect use of the public record. A.R.S. § 39-121.03(D).