                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                          WARREN WOODWARD,
                            Plaintiff/Appellant,

                                        v.

               ARIZONA CORPORATION COMMISSION,
                        Defendant/Appellee.

                             No. 1 CA-CV 18-0297
                               FILED 2-12-2019


          Appeal from the Superior Court in Yavapai County
                       No. V1300CV201680047
        The Honorable Christopher L. Kottke, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Warren Woodward, Sedona
Plaintiff/Appellant

Arizona Corporation Commission, Phoenix
By Andy M. Kvesic, Maureen A. Scott, P. Robyn Poole
Counsel for Defendant/Appellee
                          WOODWARD v. ACC
                          Decision of the Court



                     MEMORANDUM DECISION

Chief Judge Samuel A. Thumma delivered the decision of the Court, in
which Presiding Judge David D. Weinzweig and Judge James P. Beene
joined.


T H U M M A, Chief Judge:

¶1          Warren Woodward appeals from a final judgment rejecting
his claim that the Arizona Corporation Commission (ACC) failed to
properly comply with his public records request. Because Woodward has
shown no reversible error, the judgment is affirmed.

                FACTS AND PROCEDURAL HISTORY

¶2             This is the second appeal in which Woodward challenges the
ACC’s responses to his public records request. Woodward first challenged
the superior court’s dismissal of his complaint to compel the ACC to
produce documents in response to his request. Woodward v. Ariz. Corp.
Comm’n, 1 CA-CV 16-0695, 2017 WL 4365978, at *1 ¶ 1 (Ariz. App. Oct. 3,
2017) (mem. dec.). On appeal, this Court remanded so the superior court
could consider whether the ACC had adequately searched for responsive
documents and made a good faith effort to comply with the request. Id. at
*3 ¶¶ 13-14. Additional details and background are more fully discussed in
that decision.

¶3            On remand, without apparent objection, the parties briefed
“whether [the ACC] has fully complied with [Woodward’s] request by
adequately searching for records through a search procedure reasonably
calculated to uncover the relevant documents.” The ACC provided an
affidavit, under oath and based on personal knowledge, from a paralegal
who described the process used to respond to the request. After reviewing
the arguments and affidavit, the court concluded the ACC had “satisfied
the search and production requirement consistent with Arizona law;” had
“acted in good faith, notwithstanding the inadvertent non-production of
certain documents, later discovered;” and had discharged its obligations to
conduct “an adequate search, reasonably calculated to uncover relevant
documents” requested. The court also declined to sanction the ACC
because its “error in initial non-disclosure was unintentional.”




                                    2
                           WOODWARD v. ACC
                           Decision of the Court

¶4            After entry of final judgment, see Ariz. R. Civ. P. 54(c) (2019),1
Woodward timely appealed, and this court has jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (A.R.S.) sections 12-120.21(A)(1) and -2101(A)(1).

                               DISCUSSION

¶5           Woodward’s sole claim on appeal is that the superior court’s
“ruling is arbitrary because it relies on the deficient affidavit” of the
paralegal describing the search. Woodward does not challenge the
foundation or admissibility of the affidavit or the summary to which it was
attached, but instead asserts: (1) it did not explain how responsive
documents were missing but later discovered; (2) because it “did not allege
inadvertence,” the court could not find inadvertence and (3) Woodward
received documents on dates that differed from those in the affidavit.

¶6             As applicable here, Arizona’s public records laws are set forth
in A.R.S. §§ 39-121 to -128. A responding agency bears “the burden of
establishing that it adequately searched for” the records requested. Phx.
New Times, L.L.C. v. Arpaio, 217 Ariz. 533, 539 ¶ 16 (App. 2008). “In
discharging this burden, the agency may rely on affidavits or declarations
that provide reasonable detail of the scope of the search.” Id. (citation
omitted). This court reviews de novo whether the ACC wrongfully denied
Woodward access to requested public records, see id. at 538 ¶ 11, but gives
deference to findings unless clearly erroneous, Hodai v. City of Tucson, 239
Ariz. 34, 39 ¶ 8 (App. 2016).

¶7             Woodward first argues the affidavit is insufficient because it
does “not explain how public records responsive to Woodward’s requests
were missing” but then later discovered. The ACC, however, was not
required to show that its search “was adequate to locate all responsive
records.” Id. at 44 ¶ 32. Instead, “the agency has the burden of establishing
that it adequately searched for” responsive documents, Phx. New Times, 217
Ariz. at 539 ¶ 16, and “its search was reasonably calculated to uncover all
relevant documents,” Hodai, 239 Ariz. at 44 ¶ 32 (citation omitted).
Accordingly, “the failure of an agency to turn up one specific document in
its search does not alone render a search inadequate.” Id. at 45 ¶ 34 (citation
omitted).




1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


                                       3
                           WOODWARD v. ACC
                           Decision of the Court

¶8            Based on the detailed affidavit and related filings, the
superior court reasonably could conclude the ACC met its burden to show
the search was adequate and “reasonably calculated to uncover all relevant
documents.” The affidavit shows the paralegal had worked at the ACC
since 2006; was “familiar with Arizona public records law;” “had assisted
the Commission in responding to over 60 prior public records requests;”
and “[a]s part of [her] official duties . . . conducted the electronic searches
and production of documents related to” Woodward’s request. The
affidavit further describes the ACC’s prompt efforts to comply. The ACC
sent several agency-wide e-mail requests for responsive documents and
began gathering and processing those documents within two days after
receipt. The paralegal also used e-mail and file archiving software to
conduct an electronic search of all ACC employees’ e-mails. The affidavit
includes the search terms and date ranges used and describes the work of
others to respond to the request.

¶9           The ACC’s filing explained how it failed to produce the
allegedly missing documents. The ACC’s summary cites to the record for
support and addresses each disputed document response in turn. Nothing
more was required. See Hodai, 239 Ariz. at 44 ¶ 32; Phx. New Times, 217 Ariz.
at 539 ¶ 16.

¶10            Woodward next argues the affidavit is deficient because it
fails to “allege inadvertence,” meaning the superior court’s finding of
“inadvertent non-production” was “an impossibility.” Woodward’s
argument ignores that the ACC repeatedly argued inadvertence in its filing,
consistently citing the record for factual support. Moreover, neither party
requested the superior court make findings of fact and conclusions of law,
see Ariz. R. Civ. P. 52(a), meaning this court presumes the superior court
“found every fact necessary to support” its ruling, Berryhill v. Moore, 180
Ariz. 77, 82 (App. 1994).

¶11           Arguing this “case is similar to Phoenix New Times,”
Woodward argues the ACC’s “inattentive” conduct should likewise be
condemned. 217 Ariz. at 541 ¶ 27 (“If public entities could be excused from
providing public records merely by being inattentive to requests, then
access to the records would be easily frustrated.”). But Phoenix New Times
assessed the timeliness of an agency’s response to a public records request,
which is not challenged here.




                                      4
                          WOODWARD v. ACC
                          Decision of the Court

¶12           Finally, Woodward argues the dates he received certain
documents “are at odds with” the dates the affidavit indicates the
documents were sent to him, a “discrepancy” he claims “is not accounted
for” in the affidavit. Specifically, Woodward points out that the affidavit
fails to acknowledge that he received some documents after he filed the
statutory special action in March 2016. But the ACC told the superior court
how and why it initially failed to send, but later did send, certain
documents. Woodward also has failed to show how any such
“discrepancy” resulted in error by the superior court. Stated differently,
Woodward has failed to show that the court erred in relying on the filings
made to conclude the ACC conducted “an adequate search, reasonably
calculated to uncover relevant documents of the request.”

                              CONCLUSION

¶13          Because Woodward has shown no reversible error, the
judgment is affirmed.




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




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