                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


               TIMOTHY MCKEE, a single man, Appellee,

                                  v.

  PEORIA UNIFIED SCHOOL DISTRICT, a political subdivision of the
                      state, Appellant.

                         No. 1 CA-CV 13-0374
                          FILED 12-02-2014


          Appeal from the Superior Court in Maricopa County
                         No. CV2010-096000
               The Honorable Karen A. Mullins, Judge

                             REVERSED


                              COUNSEL

Lewis Roca Rothgerber, LLP, Phoenix
By Mary Ellen Simonson, Kimberly A. Demarchi

DeConcini McDonald Yetwin & Lacy, PC, Tucson
By Denise M. Bainton
Co-Counsel for Appellant

Law Offices of William R. Hobson, Chandler
By William R. Hobson

Law Offices of Kevin Koelbel, PC, Chandler
By Kevin Koelbel
Co-Counsel for Appellee
Arizona Attorney General’s Office, Phoenix
By Paula S. Bickett
Counsel for Amicus Curiae State of Arizona

By Christopher P. Thomas, Phoenix
Counsel for Amicus Curiae Arizona School Boards Association

Holm Wright Hyde & Hays, PLC
By Matthew W. Wright, David K. Pauole
Counsel for Amicus Curiae Arizona School Risk Retention Trust, Inc.

Sims Murray, Ltd.
By William J. Sims, III, Kristin M. Mackin
Counsel for Amicus Curiae Arizona Municipal Risk Retention Pool



                                 OPINION

Judge Kent E. Cattani delivered the opinion of the Court, in which
Presiding Judge Jon W. Thompson and Judge Donn Kessler joined.


C A T T A N I, Judge:

¶1            Peoria Unified School District appeals the superior court’s
judgment in which the court found that the District failed to promptly
respond to Timothy McKee’s public records request. The District also
challenges the court’s ruling awarding McKee $67,500 in attorney’s fees.
For reasons that follow, we conclude that the superior court improperly
assessed the “promptness” of the District’s response as it related to the
production of individual documents, rather than in the context of the
District’s overall response to a multi-pronged request for documents.
Accordingly, we reverse the judgment and vacate the fee award.

             FACTS AND PROCEDURAL BACKGROUND

¶2            McKee was a physical education teacher at a District high
school. In May 2010, a student drowned during a swimming class while
under McKee’s supervision.        The District conducted an internal
investigation, which ultimately led to the District seeking to terminate
McKee’s employment. The details of the drowning and the District’s
subsequent termination of McKee’s employment are set forth more fully in
our recent decision upholding the termination. See Peoria Unified Sch. Dist.


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                            Opinion of the Court

v. McClennen, 1 CA-SA 13-0263, 2014 WL 4473640, at *1–2, ¶¶ 2–10 (Ariz.
App. Sept. 11, 2014) (mem. decision).

¶3            On August 24, 2010, after the District began to move forward
with employment termination proceedings, McKee filed a public records
request with the District seeking the following information and documents
related to the drowning, the District’s investigation, and the termination
process:

             The name of the attorney who will be representing the
              District at the [termination] hearing, including the
              agendas and minutes of board meetings at which the
              attorney was contracted and a copy of the contract.

             The name of the District’s investigator and any reports,
              notes, statements, documents, interviews, recordings
              and names of witnesses that are part of the
              investigation.

             The names and contact information for all of the
              students who were at the pool on May 12, 2010 at the
              time of the incident whether in Mr. McKee’s or
              [another teacher’s] class.

             The name and contact information for every staff
              person and teacher at Ironwood High School.

             Any recording and/or minutes of the August 20, 2010
              Board meeting [at which the school board adopted a
              statement of charges for McKee’s dismissal], including
              the discussion in executive session regarding items
              2(A) and 2(D) on the agenda.

             An electronic copy of [District Superintendent] Mr.
              Santorelli’s letter dated August 16, 2010, which was
              hand-delivered to Mr. McKee on August 17, 2010
              including all Meta data.

¶4            Upon receipt of the records request, the District’s human
resources director, Tahlya Visintainer, who was also the District’s custodian
of records, began the process of responding. Visintainer initially gathered
readily-available documents, such as the District’s investigative file that she
herself had created and had stored in her office. She also contacted the
school board and several other departments to ask for documents


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                            Opinion of the Court

responsive to McKee’s request, including the business department for
records relating to the retention of counsel, and the IT department for the
electronic copy of the superintendent’s letter. In addition to gathering
responsive documents, Visintainer coordinated review/redaction of
confidential or otherwise protected information from the documents.

¶5            On September 3, eight business days after submitting the
records request, McKee contacted the District by letter stating that he had
not yet received a response and, “[b]ecause of the short timelines involved”
for the administrative termination proceedings, renewed his request for
“immediate production” of the public records materials.1 On September 9,
eleven business days after the request, McKee filed suit against the District
in superior court alleging, among other claims, that the District had violated
public records law by failing to respond to his request.

¶6             On that same date, the District sent McKee a letter detailing
in part the status of his request, including the anticipated finalization and
approval of the August 20, 2010 Board minutes, the availability (by
September 13) of a recording of the public Board meeting, and the District’s
position that the names and contact information of students present at the
drowning were not subject to production as a public record because of
confidentiality concerns. On September 13, the District provided McKee
with the audio recording of the August 20 Board meeting. And on
September 16, the District produced over 150 pages of the investigative file
and records relating to the retention of counsel.

¶7            McKee contacted the District on September 30 with concerns
that the investigative file provided on September 16 did not contain the
notes of all witness interviews. Although Visintainer thought the full
investigative file had been stored in a single location in her credenza (the
source for the portion produced on September 16), she searched her office
and found additional interview notes on a note pad in a desk drawer. The
District scanned and sent these additional notes to McKee on October 1, and
sent a corrected version on October 2.

¶8            Later that day, McKee again contacted the District to ask
about three witnesses for whom interview notes had not been provided.
Visintainer searched her office again and found the notes of her interviews
with the three additional witnesses on a separate note pad on her desk. She


1     McKee’s employment termination hearing was scheduled to begin
on October 4, 2010.



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scanned the remaining notes and, through counsel, provided them to
McKee on October 3, 24 business days after the records request. McKee’s
3-day employment termination hearing began as scheduled on October 4.2

¶9           Over one year into the public records lawsuit, McKee made a
discovery request for production of “[t]he Log provided by ‘the school
administration’ to the Glendale Police Department and referenced by
Officer McMillan” in the police report attached to the statement of charges
in the administrative proceeding. The District advised McKee that it did
not have such a document.

¶10            Before trial, McKee withdrew his claims as to three of the six
categories of documents requested, leaving at issue only the District’s
investigative file, the names and contact information of students present at
the drowning, and a record of the executive session portion of the August
20 Board meeting. At the two-day bench trial, Visintainer testified that she
had assumed all interview notes were in the main file in her credenza, that
she produced the missing notes immediately upon becoming aware that
they were missing, and that her failure to produce the complete file in the
initial September 16 production was an unintentional mistake. Visintainer
also testified that McKee’s discovery request for the student “log” was the
first time she had heard of this document, and school administrators
suggested to her that the document might be “a handwritten sheet of paper
that had been passed around to the kids that had gone to a certain classroom
and written their names and contact information down and then handed []
over to the police department that day.”

¶11           The superior court ruled that the District’s response to the
request for the investigative file was not sufficiently prompt, and that the
District should have, at a minimum, advised McKee that it had provided
the student contact log to the police. The court ruled against McKee
regarding his request for the District Board executive session minutes. The
court then found that McKee had substantially prevailed on his public
records claim and awarded him $67,500 in attorney’s fees. See Ariz. Rev.




2     At the conclusion of the hearing, the hearing officer recommended
against terminating McKee’s employment, but the District Board
subsequently rejected that recommendation.



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                             Opinion of the Court

Stat. (“A.R.S.”) § 39-121.02(B) (authorizing award of attorney’s fees to
individual who “substantially prevailed” in public records suit).3

¶12            The District timely appealed.4 We have jurisdiction under
Article 6, Section 9, of the Arizona Constitution, and A.R.S. § 12-2101(A)(1).

                                DISCUSSION

¶13           Arizona law requires that public records be open to
inspection by any person. See A.R.S. § 39-121. The public records law
“open[s] agency action to the light of public scrutiny” and ensures that
citizens are “informed about what their government is up to.” Scottsdale
Unified Sch. Dist. No. 48 v. KPNX Broad. Co., 191 Ariz. 297, 302–03, ¶ 21, 955
P.2d 534, 539–40 (1998) (citations omitted). “Access to a public record is
deemed denied if a custodian fails to promptly respond to a request for
production of a public record . . . .” A.R.S. § 39-121.01(E).

¶14            The District argues the superior court erred by (1) concluding
that the District violated the public records law because of its delay in
responding to McKee’s request for the investigative file and by failing to
inform McKee that it had provided the student contact log to the police, and
(2) awarding McKee his attorney’s fees. We review the court’s decision that
McKee was wrongfully denied access to the District’s records de novo as an
issue of law, although we defer to the court’s factual findings unless clearly
erroneous. See Judicial Watch, Inc. v. City of Phoenix, 228 Ariz. 393, 395, ¶ 8,
267 P.3d 1185, 1187 (App. 2011).5



3     Absent material revisions after the relevant date, we cite a statute’s
current version.

4      McKee argues this court lacks jurisdiction to hear the appeal on the
basis that the District did not timely file its notice of appeal. Before the case
came at issue, McKee moved to dismiss the appeal on this same ground. A
different panel of this court denied the motion; we decline to revisit this
jurisdictional issue.

5      In his answering brief, McKee advances several arguments seeking
affirmative relief from the superior court’s rulings. He argues that the court
erred by determining that the minutes of the school board’s executive
session were not subject to production, by awarding only a portion of the
attorney’s fees he requested, and by dismissing his request for declaratory



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I.     Investigative File.

¶15            Upon request, a custodian of records must “promptly”
furnish copies of requested records, unless the records are accessible on the
entity’s website. A.R.S. § 39-121.01(D)(1). The public records statutes do
not specify a fixed timeframe in which production of documents is
required. See id.; W. Valley View, Inc. v. Maricopa Cnty. Sheriff’s Office, 216
Ariz. 225, 230, ¶ 21, 165 P.3d 203, 208 (App. 2007). Nor does case law specify
a fixed timeframe. Instead, “prompt” has been defined for these purposes
as “being ‘quick to act’ or producing the requested records ‘without delay.’”
Phx. New Times, L.L.C. v. Arpaio, 217 Ariz. 533, 538, ¶ 14, 177 P.3d 275, 280
(App. 2008) (citation omitted). Promptness is assessed within the context
of the particular facts and circumstances surrounding each request. Id.

¶16            The superior court found that even the District’s initial
September 16 production of the bulk of the investigative file—16 business
days after McKee’s request—was not sufficiently prompt. The court
reasoned that “[t]he file was already in existence in the office of
[Visintainer] . . . . who created the file, had possession and control of the
file, was personally aware that it was available for production, and had
personal knowledge of its contents.” The court also found that Visintainer
failed to conduct a reasonable search for the complete investigative file,
which led to the subsequent production of missing interview notes (the
absence of which the court suggested “should have been obvious to the
District”) 24 business days after the initial records request.

¶17            The superior court analogized the disclosure in this case to
that at issue in Arpaio, in which this court held that the Maricopa County
Sheriff’s Office improperly refused to produce documents. After a
newspaper requested five categories of documents relating to a specific
incident and arrest, the Sheriff’s Office indicated that it would respond only
when the investigation was complete, even though several of the
documents requested were already available for production. 217 Ariz. at
545, ¶ 41, 43, 177 P.3d at 287. The Arpaio court concluded that, because
“reports of ongoing police investigations are not generally exempt from our
public records law,” the Sheriff’s Office should not have refused to produce


relief under the open meeting law. Because McKee did not cross-appeal
from the superior court’s judgment, however, these arguments are not
properly before us, and we decline to address them. See ARCAP 13(B)(3)
(“The appellate court may direct that the judgment be modified to enlarge
the rights of the appellee or to lessen the rights of the appellant only if the
appellee has cross-appealed seeking such relief.”).


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                             Opinion of the Court

existing documents just because the investigation was not yet final. 217
Ariz. at 545, ¶ 43, 177 P.3d at 287 (quoting Cox Ariz. Publ’ns, Inc. v. Collins,
175 Ariz. 11, 14, 852 P.2d 1194, 1198 (1993); see also id. at 544, ¶ 38, 177 P.3d
at 286 (“An agency may not wait to provide records already available until
a final report is produced.”).

¶18            In contrast to the Arpaio case, here, the District did not rely on
the fact of an ongoing investigation to delay production of any records. In
fact, the District’s investigation was complete before McKee filed his public
records request, and the District’s intended process was to compile the
already-existing records to produce a comprehensive response to all six
categories of McKee’s request.

¶19           In concluding that the District failed to timely provide readily
available documents to McKee, the superior court incorrectly assessed the
promptness of production of the investigative file in isolation, rather than
in the context of McKee’s request for six categories of documents. The fact
that one document may be easily accessed does not necessarily create an
obligation to immediately turn over the document without waiting to
compile other requested documents and without allowing time for review
and redaction. Nothing in the statutes or in Arpaio requires that a public
entity produce each individual responsive document (or category of
documents) immediately, as long as the response as a whole is provided
“promptly.” See A.R.S. § 39-121.01(D)(1).

¶20            Here, the record is clear—when considered in the context of a
comprehensive response to McKee’s request for six distinct categories of
documents, some to be gathered from different departments, and all of
which were subject to review and possible redaction of confidential
information prior to production—that the District acted reasonably and
promptly in its efforts to respond to McKee’s request. By beginning a
rolling response to McKee’s public records request just 16 business days
after receiving it, and by completing the disclosure of relevant documents
within 24 business days, the District acted promptly. Cf. 5 U.S.C. §
552(a)(6)(A)(i) (setting 20-business-day deadline for federal agency to make
an initial determination whether to comply with a request for documents
under the Freedom of Information Act).

¶21            Finally, although the District mistakenly omitted portions of
the file in its initial disclosures, the District immediately corrected the
mistake when McKee’s counsel asked about missing documents. Thus,
even accepting the superior court’s conclusion that the District could have
found the documents sooner, we conclude that McKee has not established


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                             Opinion of the Court

bad faith on the part of the District, and the quickly-corrected mistake does
not undermine the overall reasonableness/promptness of the District’s
response. See Arpaio, 217 Ariz. at 541 n.5, ¶ 28, 177 P.3d at 283 n.5 (stating
that, if custodian acted in good faith and made reasonable efforts, mistake
would not establish a wrongful denial of access to public records). We
therefore reverse the superior court’s ruling that the District failed to
promptly provide McKee a copy of the investigative file.

II.    Student Contact Information and Log.

¶22            Public records are those “reasonably necessary or appropriate
to maintain an accurate knowledge of [a public entity or officer’s] official
activities and of any of their activities which are supported by monies from
this state or any political subdivision of this state.” A.R.S. § 39-121.01(B).
The Arizona Supreme Court has described three alternative categories of
public records:

       A public record is [1] one “made by a public officer in
       pursuance of a duty, the immediate purpose of which is to
       disseminate information to the public, or to serve as a
       memorial of official transactions for public reference”; [2] a
       record that is “required to be kept, or necessary to be kept in
       the discharge of a duty imposed by law or directed by law to
       serve as a memorial and evidence of something written, said
       or done”; or [3] any “written record of transactions of a public
       officer in his office, which is a convenient and appropriate
       method of discharging his duties, and is kept by him as such,
       whether required by . . . law or not.”

Griffis v. Pinal Cnty., 215 Ariz. 1, 4, ¶ 9, 156 P.3d 418, 421 (2007) (quoting Salt
River Pima-Maricopa Indian Cmty. v. Rogers, 168 Ariz. 531, 538–39, 815 P.2d
900, 907–08 (1991)). Not all records created or kept by a public entity qualify
as public records; instead, the “nature and purpose of the document
determine its status,” and only those documents having a “substantial
nexus” to the entity’s activities meet this content-driven test. Phx.
Newspapers, Inc. v. Ellis, 215 Ariz. 268, 272, ¶ 16, 159 P.3d 578, 582 (App.
2007) (quoting Griffis, 215 Ariz. at 4, ¶ 10, 156 P.3d at 421).

¶23            The law creates a strong presumption in favor of disclosure of
public records. Griffis, 215 Ariz. at 5, ¶ 12, 156 P.3d at 422. This
presumption may be overcome, however, where “privacy, confidentiality,
or the best interests of the state outweigh the policy in favor of disclosure.”
Id. at ¶ 13.



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                            Opinion of the Court

¶24            The superior court found that the District had created the
handwritten log of students present for the drowning and that, “[b]ecause
there was no evidence that the District retained a copy of the log, its
obligations under the public records statute would have been satisfied by
informing McKee that the log was in the custody of the Glendale Police
Department.” The court found that, because the District did not do so until
over one year after the records request, the District had denied McKee
access to the requested record.

¶25           Preliminarily, the superior court improperly found that the
log was the District’s record rather than a police record. In making that
finding, the court relied on Glendale Police Detective McMillan’s report, in
which the detective stated that “I was advised that the school personnel
w[ere] passing out a log and having each child write their personal
information down.” But Det. McMillan testified that (contrary to the
superior court’s interpretation of his report) he did not know who had
prepared the list or, more generally, where the list had come from.
Similarly, other officers’ reports do not mention participation by school
personnel, noting only that “[a] list was sent around the class for the
students to put down names, addresses and phone numbers” or that “[t]he
list was on notebook paper completed by each student putting down their
information.”

¶26           Additionally, Det. McMillan acknowledged that the log was
created “for the purpose of providing this to the police” and that it “was
used for the police investigation.” Even assuming school personnel
assisted with or facilitated creation of the log, “the nature and purpose of
the document determine its status.” See Griffis, 215 Ariz. at 4, ¶ 11, 156 P.3d
at 421. Because this testimony tying the log to a police purpose was the
only evidence presented on the matter, the record thus compels the
conclusion that the log was not a District record. See id. at 4, ¶ 9, 156 P.3d
at 421 (tying definition of public record to production of the record as part
of the public entity’s public duty).

¶27           Finally, the court’s finding that the District should have
advised McKee that the log had been given to the Glendale Police
Department ignores the fact that McKee was already aware that the police
had the log before he requested the contact information from the District.
In fact, McKee obtained a copy of the log, albeit a redacted copy, directly
from the Glendale Police Department prior to his employment termination
hearing. His request to the District for a (presumably unredacted) copy of
the document he successfully obtained elsewhere highlights McKee’s
conflation of the public’s right to public records and his litigation-based


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                            Opinion of the Court

discovery needs. McKee’s discovery dispute regarding redaction of the log
(and access to an unredacted copy) should have been addressed through
his employment termination litigation with the District and was unrelated
to whether the District (in responding to a public records request) should
have told him something he already knew—that the Glendale Police
Department had the requested document. See London v. Broderick, 206 Ariz.
490, 495, ¶ 18, 80 P.3d 769, 774 (2003) (noting that the relevant consideration
for a public records request is “the public’s interest in disclosure,” not
someone’s “personal interests as an individual litigant”); see also Scottsdale
Unified Sch. Dist. No. 48, 191 Ariz. at 302–03, ¶ 21, 955 P.2d at 539–40 (public
records laws protect the public’s interest in transparency in government).

¶28            Because public records law only requires production of
“[p]ublic records and other matters in the custody of any officer” (not the
records of a different entity), A.R.S. § 39-121, and because the court erred
by conflating McKee’s personal litigation needs with disclosure required
under Arizona’s public records law, we reverse the court’s ruling that the
District violated public records law in its response to McKee’s request for
student contact information.

III.   Attorney’s Fees.

¶29            The superior court found that McKee had substantially
prevailed against the District and awarded him $67,500 in attorney’s fees.
See A.R.S. § 39-121.02(B) (authorizing discretionary award of attorney’s fees
to requesting party who substantially prevails in public records litigation).
Because we have reversed both facets of the public records claim on which
McKee prevailed, we vacate the award of attorney’s fees.

¶30           McKee also seeks an award of attorney’s fees on appeal under
A.R.S. § 39-121.02(B). McKee has not substantially prevailed on appeal, and
we accordingly deny his request for fees.




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                         Opinion of the Court

                           CONCLUSION

¶31          For the foregoing reasons, we reverse the superior court’s
ruling and vacate the award of attorneys’ fees.




                              :gsh




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