In May of 2013, Tucson resident Celia Cruz requested public documents concerning the City of Tucson’s proposed sale of El Rio Golf Course to Grand Canyon University. Cruz received no documents and it appeared her request was all but ignored.
Finally, over one year later, after Cruz was forced to sue the City of Tucson for the documents with the help of attorney Bill Risner, Pima County Superior Court Judge Christopher Staring ruled in favor of Cruz against the City on May 16, 2014 . Officials must now turn over the entirety of the documents described in Cruz’s May 12, 2013 request for public records, on or before June 4, 2014.
The judge found that the City misrepresented its action to the Court, when attorneys claimed in their July 8, 2013 Motion to Dismiss: “The City has now fully responded to Plaintiff s public records request, except that it has withheld approximately seven documents from release.”
Staring wrote, “It is now clear that the July 8 representation was not remotely accurate. In fact, the record supports the conclusion that COT either knew the July 8 representation was false, or knew its efforts in response to Ms. Cruz’s request were so inadequate it could not have had any confidence in the accuracy of the representation. As discussed below, COT’s actions, including the July 8 representation, unreasonably expanded and delayed these proceedings to an extent necessitating sanctions pursuant to A.R.S. § 12-349(A).”
Staring found, “Clear and convincing evidence exists that COT engaged in “misconduct” sufficient to warrant relief pursuant to Rule 60(c)(3).”
As a result Staring awarded attorney fees to Cruz in the amount of $15,800.00. Read the ruling here.
In his ruling, Judge Staring noted that it was “important to reiterate that this case is about whether COT has complied with the access obligations imposed by Arizona law. It is not about the pros and cons of conveying El Rio to GCU. This is because the public records statutes impose transparency obligations in plain, neutral language.”
According to author J.T. Waldron, records that the plaintiffs did receive, “indicate the need to fully understand the extent to which city officials were forfeiting valuable assets for the benefit of wealthy investors. Using a dubious appraisal that ignored existing development and infrastructure of El Rio’s land, the city’s offer would have yielded a purchaser’s windfall of around 45 million dollars for a quantity of land that is five times the space needed to construct the university.”
Court Findings:
Clear and convincing evidence exists that COT engaged in “misconduct” sufficient to warrant relief pursuant to Rule 60(c)(3). Prior to the July 23 trial, COT made the July 8 representation. The effect of the July 8 representation was to focus the July 23 trial on whether Ms. Cruz was entitled to production of the “seven” withheld documents. COT’s argument that the July 23 trial was always about only the “seven” withheld documents is unavailing given the scope of Ms. Cruz’s May 2013 request, the totality of the language in her petition, and the July 8 representation. After COT’s July 8 representation, why would the July 23 trial have been about anything other than the “seven?”
While both intentional and inadvertent acts may constitute “misconduct” under Rule 60(c)(3), the record raises serious questions concerning the integrity of COT’s response to Ms. Cruz’s May 2013 request. For example, Donald Parslow (COT’s Deputy Director for Information and Technology) testified that his office had no involvement with responding to Ms. Cruz’s document request prior to the July 23 trial. (December 5, 2013Rule 30(b)(6) Deposition, pp. 4-5.) The IT department was not made aware of Ms. Cruz’s request until August 15, 2013. (December 5, 2013 Rule 30(b)(6) Deposition, p. 7.) That was three months after Ms. Cruz made the request, and more than a month after the July 8 representation.
Mr. Parslow never saw Ms. Cruz’s actual request until November 13, 2013, and the City Attorney’s Office did not request assistance from IT with regard to Ms. Cruz’s request until the middle of August. (December 5, 2013 Rule 30(b)(6) Deposition, pp. 14-15.) Mr. Parslow further testified that his department received a September 12 e-mail from Assistant City Attorney Dennis McLaughlin, authorizing the IT department to begin a search for e-mails responsive to Ms. Cruz’s request. (December 5, 2013 Rule 30(b)(6) Deposition, pp. 25-27.)
This last piece of testimony is particularly troubling in light of the fact COT’s computer system automatically drops e-mail, likely resulting in the inability to retrieve e-mail after 180 days. (December 5, 2013 Rule 30(b)(6) Deposition, pp. 65-67.) Why would COT wait until September to authorize the retrieval of e¬ mail responsive to Ms. Cruz’s May 12 request? Were significant e-mails lost because of the delay? The way to prevent such questions, as well as speculation concerning the answers, is to comply with the obligations imposed by the public records statutes.
Mr. Parslow’s testimony concerning the timing of communications with the IT department is made more striking by the November 18, 2013 Rule 30(b)(6) testimony of Christopher Kaselemis, COT’s Economic Initiative Program Director. Mr. Kaselimis testified: “I understand that when we get a request like this, we check with our IT department to get all the-all the computer files, and I met with Mr. McLaughlin several times ….” (November 18, 2013 Rule 30(b)(6) Deposition, p. 5, emphasis added.)
COT cannot reasonably claim Ms. Cruz’s request came as a surprise. On February 19, 2013, Josh Brodesky of The Arizona Republic submitted a public records request concerning the El Rio matter, including, but not limited to, “documents such as reports, memos and emails.” (Attachment 7 to Exhibit G.) COT, therefore, knew El Rio was a matter of community interest. Presumably, Mr. Brodesky’s request caused COT to take stock of the existing documents. That should have simplified the process of identifying documents responsive to Ms. Cruz’s request.
Given the clear legislative intent and strong public policy favoring access to public documents, Ms. Cruz had a meritorious claim concerning access to the documents she requested on May 12, 2013. Ms. Cruz was precluded from litigating the entirety of her document request as a direct result of the July 8 representation, which was either intentionally misleading or recklessly inaccurate. In short, the scope of the July 23 trial was defined by COT’s “misconduct,” as that term is contemplated by Rule 60(c)(3).
Ms. Cruz made a public document request, and was denied access to public documents. She brought a special action pursuant to § 39-121.02(A), and received a ruling that ordered COT to produce documents at issue. Pursuant to Rule 60(c)(3), that ruling will now be amended, ordering COT to produce all documents requested in Ms. Cruz’s May 2013 request, with the exception of documents already identified as being protected by the attorney-client privilege. The amended ruling will also contain the finding that Ms. Cruz substantially prevailed in her special action, and, as discussed below, is entitled to an award of attorney fees and costs. There will also be a sanction pursuant to A.R.S. § 12-349(A).
Ms. Cruz is entitled to recover pursuant to A.R.S. § 12-349(A), which provides that a court “shall assess reasonable attorney fees, expenses and, at the court’s discretion, double damages of not to exceed five thousand dollars against an attorney or party, including this state and any political subdivisions of this state, if the attorney or party does any of the following: … 3. Unreasonably expands or delays the proceeding ….” (Emphasis added.)
This is such an instance. Specifically, and pursuant to A.R.S. § 12-350, the Court finds that by making the July 8 representation, and by failing to comply with obligations imposed by the public records statutes, as well as its own procedures for responding to document requests, COT unreasonably expanded and delayed the proceedings, as contemplated by A.R.S. § 12-349(A)(3).
As noted in the October 30 Ruling, COT produced approximately 800 pages of documents on Friday, October 25, which was three days before the October 28 hearing on Ms. Cruz’s first motion for new trial. At the April l, 2014 hearing, the Court learned COT produced a number of e-mails on March 21, 2014. The e-mails were authored prior to Ms. Cruz’s May 12, 2013 request. (April l, 2014 RT, pp. 25-26.) approximately a month after the July 23 trial, and three months after Ms. Cruz’s request. Section 39-121.0l(E) requires that a government entity “promptly respond” to a request. It is an understatement to say that waiting three months to notify the IT department is not prompt. Significantly, Mr. Brodesky had made a similar public records request in February 2013. As of July 8, therefore, COT should have been able to assess accurately whether it had made a full response to Ms. Cruz’s request.
The July 8 representation, and, at best, COT’s slipshod approach to Ms. Cruz’s request, unreasonably expanded and delayed the resolution of this matter, mandating an award pursuant to § 12-349(A)(3). See Solimeno v. Yonan, 224 Ariz. 74, 227 P.3d 481 (App. 2010) (affirming § 12-349(A)(3) sanction arising from defendant’s failure to disclose trial testimony, necessitating mistrial). Thus, as a sanction pursuant to § 12- 349(A)(3), and in addition to the award of attorney fees and costs pursuant to § 39-121.02(8), Ms. Cruz is entitled to an award of $15,800.00. This amount reflects a base award of $10,800.00 (the equivalent to an additional thirty hours of counsel’s time), to which $5,000.00 has been added pursuant to the statute’s discretionary doubling provision. The $10,800.00 amount is reasonable given the efforts expended by counsel, and the fact Ms. Cruz is not responsible for all of the fees in this matter. COT’s actions in this instance, particularly in making the July 8 representation, justify the imposition of the discretionary sanction.
Cruz’s May 12 Request For Information included:
● All hard-copy documents, electronic documents and metadata, correspondence, notes of meetings and telephonic conversations, meeting dates and persons attending said meetings, and emails relating to the sale, lease, gifting, development of a Grand Canyon University (aka and dba Grand Canyon Education) campus on the current El Rio Golf Course site
● All City departments and entities and personnel, including City Council members and City Council Ward offices and staff, Mayor’s office and staff, and
● Feasibility, financial-impact studies and any other study conducted by the City of Tucson or any agency acting on behalf of, or funded wholly or in part by, the City of Tucson, or requested by the City of Tucson or any agency acting on behalf of, or funded wholly or in part by, the City of Tucson, and
● Incentives of any kind, including but not limited to tax incentives, offered or discussed, orally or in writing, formally or informally, regarding Grand Canyon University, aka and dba Grand Canyon Education.
● Petition signatures gathered by City staff and/or others on a petition sheet calling for El Rio Golf Course to be converted to a park, including but not limited to a petition entitled “Petition to support an open space park at El Rio/ Peticion para apoyar un parque publico en El Rio.”
Attorney Bill Risner explains the case to the public: