                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                    TIMOTHY SLATER, Plaintiff/Appellant,

                                         v.

           ARIZONA BOARD OF REGENTS, Defendant/Appellee.

                              No. 1 CA-CV 19-0030
                                FILED 1-23-2020


            Appeal from the Superior Court in Maricopa County
                           No. CV2016-013953
                  The Honorable Joseph C. Welty, Judge
                  The Honorable Kerstin LeMaire, Judge

                       REVERSED AND REMANDED


                                    COUNSEL

Jaburg & Wilk, PC, Phoenix
By Kraig J. Marton, Jeffrey A. Silence
Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Rachel M. Remes
Counsel for Defendant/Appellee
                             SLATER v. ABOR
                            Decision of the Court



                      MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge David B. Gass joined.


W E I N Z W E I G, Judge:

¶1            Dr. Timothy Slater appeals the superior court’s dismissal of
his complaint against the Arizona Board of Regents (ABOR) under Arizona
Rule of Civil Procedure 12(b)(6). Accepting his factual allegations as true,
we conclude that Dr. Slater adequately stated his negligence and breach of
confidentiality claims. We reverse and remand.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On appeal from a motion to dismiss, this court “assume[s] the
truth of [all] well-pled factual allegations and indulge[s] all reasonable
inferences therefrom.” Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7
(2008).

¶3            ABOR governs and controls Arizona’s state universities,
including the University of Arizona. A.R.S. §§ 15-1601(A), -1625(A). ABOR
has “the powers necessary for the effective governance and administration”
of the University. A.R.S. § 15-1626(A)(1). To that end, ABOR has adopted
a comprehensive set of regulations, policies and rules for the “institutions
under its control.” Id. Among ABOR’s policies are Policy Number 1-119
on “Nondiscrimination and Anti-Harassment,” and Policy Number 6-912
on “Access to or Disclosure of Personnel Records or Information.”

¶4            Dr. Slater was an associate professor of astronomy at the
University from 2001 to 2008. He received tenure in 2004. Two months
later, “several individuals” reported Dr. Slater to University officials for
“continual sexual joking, banter and unwelcome touching,” but “refused to
file complaints” for fear of retaliation. The University investigated,
interviewing Dr. Slater and at least 11 unnamed witnesses who interacted
with Dr. Slater. Before his interview, Dr. Slater was “assured that the results
of the investigation would be confidential.”




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                            SLATER v. ABOR
                           Decision of the Court

¶5           The University issued a formal 38-page “Investigative
Report” on March 31, 2005.1 The document described various allegations
of harassment against Dr. Slater and summarized witness interviews. Each
page was marked “CONFIDENTIAL” in bold and italics. In the end, the
report concluded that Dr. Slater violated the University’s sexual
harassment policy but found insufficient evidence of retaliation. The
University pursued no disciplinary action against Dr. Slater.

¶6            In January 2010, a Chicago-based astronomer submitted a
public records request to the University for “documents relating to . . .
charges, investigations, and disciplinary actions against former professor of
Astronomy Timothy F. Slater.” The University responded in May 2010
through its Custodian for Public Records in the Office of Institutional
Research & Planning Support. The Custodian withheld “[m]ost records
relating to any charges, investigations, and disciplinary actions against [Dr.
Slater] due to the chilling effect they would have on future possible
employee investigations,” but disclosed “the final investigative report that
summarizes the findings” under “A.R.S. § 39-121 and 39-128.”

¶7            Around two months later, the same Custodian of Public
Records asked the Chicago astronomer to “please destroy any copies” of
the document because it had been disclosed “in error” and “contrary to the
policies and practices of the university for release,” raising concern about
the “chilling effect” that releasing the report “would have on future
possible employee investigations.”

¶8            Almost five years elapsed before a United States
Representative read swaths of the Investigative Report into the
congressional record to raise awareness about sexual harassment in
university science departments. From there, the Investigative Report’s
contents were widely broadcast and published by news outlets across the
nation. In one article, the University of Arizona’s Vice President for
Communications said the Investigative Report should not have been
disclosed and was not a public record. The Vice President lamented that
“[s]omebody forgot or screwed up,” but promised that “[c]ontrols have
been tightened on that process since then.”

¶9          A few months later, Dr. Slater submitted his own public
records request to the University, seeking the same documents and
information produced in response to the initial public records request.


1    Dr. Slater attached a copy of the Investigative Report to his
complaint in this lawsuit.


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                           Decision of the Court

ABOR refused, explaining that “the University does not release records of
complaint investigations because doing so would be contrary to the best
interests of the state and compromise the privacy interests of the
complaining individuals and witnesses.”

¶10           In November 2016, Dr. Slater sued ABOR for breach of
confidentiality, defamation, false light, public disclosure of private
information and negligence. His complaint alleges that ABOR owed him a
duty of confidentiality “by reason of University policy and practice,
promises made to [him] and state law and regulation,” pointing to express
and implied contracts, along with his employment relationship.

¶11           ABOR moved to dismiss Dr. Slater’s breach of confidentiality
and negligence claims for failure to state a claim under Rule 12(b)(6),
arguing that “Slater cannot establish that the investigation report was
confidential” and “cannot establish that the [University] owed him a duty
to keep that report confidential.” The superior court granted ABOR’s
motion, reasoning that “[a]s currently pled, [Dr. Slater] fails to show” under
either “statute or common law” that ABOR owed or breached a duty of
confidentiality to him “by the release of [the Investigative Report] pursuant
to a public records request.” After discovery, Slater voluntarily dismissed
his remaining claims for defamation, false light and public disclosure of
private information. The superior court entered final judgment. Dr. Slater
timely appealed.

                               DISCUSSION

¶12             The superior court dismissed Dr. Slater’s negligence and
breach of confidentiality claims after concluding that ABOR owed no duty
of confidentiality to Dr. Slater under any interpretation of his allegations.
We review de novo the superior court’s dismissal of a complaint under Rule
12(b)(6), and only affirm if the plaintiff has no right to relief under any
interpretation of the facts. Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶
7 (2012). Our review is limited to the complaint itself and attached exhibits.
Id. at 356, ¶ 9. We assume the truth of all well-pled factual allegations and
resolve all reasonable inferences in the plaintiff’s favor, but “mere
conclusory statements are insufficient to state a claim upon which relief can
be granted.” Cullen, 218 Ariz. at 419, ¶ 7.

¶13           The issue of whether a duty exists is a question of law. Quiroz
v. ALCOA Inc., 243 Ariz. 560, 564, ¶ 7 (2018). As relevant here, a duty may
arise from “special relationships recognized by the common law [and]
contracts,” including an employment relationship, id. at 565, ¶ 14 (citing



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                            Decision of the Court

Bogue v. Better-Bilt Aluminum Co., 179 Ariz. 22, 34 (App. 1994); from contract
Diaz v. Phx. Lubrication Serv., Inc., 224 Ariz. 335, 339-40 ¶¶ 15–19 (App.
2010), or from promises of confidentiality, Cohen v. Cowles Media Co., 501
U.S. 663, 669-671 (1991) (recognizing an enforceable promise of
confidentiality under promissory estoppel).

¶14             We reverse the superior court’s dismissal for failure to state a
claim because the complaint alleges enough facts, assumed as true, to
recognize a duty of confidentiality. The complaint alleges: “Prior to being
interviewed[,] Dr. Slater was assured that the results of the investigation
would be confidential.” The University’s alleged “promise[s]” and
“assur[ances]” of confidentiality to Dr. Slater are sufficient to state a
cognizable duty of confidentiality. Diaz, 224 Ariz. at ¶¶ 15-19; Cohen, 501
U.S. at 669-671. We cannot say “beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief.” See
Newman v. Maricopa Cty., 167 Ariz. 501, 503 (App. 1991) (quoting 5A C.
Wright & A. Miller, Federal Practice & Procedure § 1357, at 325).

¶15           We need not reach whether ABOR’s administrative policies
create a duty of confidentiality to Dr. Slater, including Policy Nos. 1-119(E)
and 6-912(C). As the lawsuit continues, however, the superior court might
conclude that ABOR’s administrative policies represented implied terms of
Dr. Slater’s employment, akin to personnel manuals that “can become part
of employment contracts,” Leikvold v. Valley View Community Hosp., 141
Ariz. 544, 548 (1984), or that these policies represented an actionable
standard of conduct based on their purpose, Lombardo v. Albu, 199 Ariz. 97,
100-101 (2000) (citing Restatement (Second) of Torts § 285).2




2       We confine our review to the issues advanced on appeal, and
therefore do not address the affirmative defenses that may be advanced as
the litigation proceeds.


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                           SLATER v. ABOR
                          Decision of the Court

                             CONCLUSION

¶16           We reverse the superior court’s dismissal of Dr. Slater’s
claims for breach of confidentiality and negligence and remand for further
proceedings consistent with this decision.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




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