Beau Hodai v. the City of Tucson and Tucson Police Department

IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

BEAU HODAI,

Plaintiff/Appellant,

v.

THE CITY OF TUCSON, A MUNICIPAL CORPORATION; AND THE TUCSON

POLICE DEPARTMENT, A MUNICIPAL AGENCY,

Defendants/Appellees.

No. 2 CA-CV 2015-0018

Filed January 7, 2016

Appeal from the Superior Court in Pima County

No. C20141225

The Honorable D. Douglas Metcalf, Judge

REVERSED, IN PART, AND REMANDED

COUNSEL

ACLU Foundation of Arizona, Phoenix

By Daniel J. Pochoda and Darrell Hill

Counsel for Plaintiff/Appellant

Michael G. Rankin, Tucson City Attorney, Tucson

By Dennis P. McLaughlin and Michael W. L. McCrory

Counsel for Defendants/Appellees

HODAI v. CITY OF TUCSON

Opinion of the Court

OPINION

Presiding Judge Miller authored the opinion of the Court, in which

Chief Judge Eckerstrom and Judge Espinosa concurred.

M I L L E R, Presiding Judge:

¶1 In this appeal from a superior court special action to

compel disclosure of public records withheld by the City of Tucson,1

we address whether the best interests of the state support the court’s

decision denying all relief. In concluding that disclosure of some

redacted records does not harm the government or its people, we

reverse in part and direct the court to address ancillary matters on

remand.

Facts and Procedural Background

¶2 In October 2013, Hodai requested TPD public records

related to cell phone tracking equipment called “Stingray.” The city

describes Stingray as a surveillance technology device 2 that could

“assist in abduction/kidnapping investigations,” but was used in

1The records request was made to the City of Tucson and its

police department (TPD), which we jointly refer to as the city unless

the context requires differentiation.

2 The parties refer to “Stingray” and “Stingray II.” For the

purposes of this appeal, there is no difference between the versions.

Generally, this type of device is known as a cell site simulator, which

mimics a cell tower so that responding cell phones provide to it data

typically used for the functioning of the cellular network and

individual phone administration. Brian L. Owsley, Triggerfish,

Stingrays, and Fourth Amendment Fishing Expeditions, 66 Hastings L.J.

183, 191-92 (2014). Interception of such information has been used in

criminal investigations for a number of years. Id.

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HODAI v. CITY OF TUCSON

Opinion of the Court

only a few criminal investigations before the city discontinued its

use.3

¶3 The records request specified: (1) TPD records and

“work product” using or related to Stingray; (2) communications

about the purchase, use, and maintenance of Stingray equipment;

and, (3) all communications with Stingray’s manufacturer, Harris

Corporation. Hodai identified the equipment as having been

purchased by the city several years earlier with a specific federal

grant. TPD initially provided four redacted documents in response.

The twenty pages consisted of contract information and an email

exchange concerning redactions requested by Harris. No

information regarding Stingray’s use or cases in which it was

employed was disclosed. Hodai filed two additional related records

requests in November and December, but no further documents

were produced. Hodai included in each records request that the city

inform him if records were withheld and the reasons for the non-

disclosure. See A.R.S. § 39-121.01(D)(2). The complaint alleged a

TPD sergeant informed him after his second request that it would be

too time-consuming to locate search warrants and other responsive

documents.

¶4 In March 2014, Hodai filed a statutory special action

requesting an order directing the city to provide responsive records

and awarding Hodai attorney fees and costs. The city filed an

answer in which it generally denied it had failed to comply with the

public records law. It also averred that in “its efforts to prepare for

this lawsuit,” it found TPD training materials, an operational

manual, and forms for Stingray use. It declined, however, to

disclose these materials based on a review by the Federal Bureau of

Investigation (FBI) that opined disclosure would not be in the best

interests of the state. The city did, however, offer them for the trial

court’s in camera review. Additionally, it stated it was aware of four

3The city’s answering brief indicated that the device had left

its possession, but at oral argument and in a notice of errata counsel

clarified that the city had stopped using the device around the time

of the litigation, but retains it pending resolution of other issues.

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Opinion of the Court

closed and one open criminal investigations in which Stingray had

been used. It also offered for in camera inspection the “full case

files” of the completed investigations. Finally, the city attached two

affidavits to its answer: (1) an FBI agent’s explanation of how law

enforcement uses Stingray and the detrimental effect if technical

information about it were released; and, (2) a TPD lieutenant’s

testimony about the responsive documents, as well as TPD’s use and

maintenance of Stingray.

¶5 The city subsequently filed several hundred pages

under seal accompanied by a motion requesting the trial court

inspect documents in camera. The documents included law

enforcement training materials, a form used for officers to request

Stingray monitoring, a “data dump” of raw data received from the

equipment during an investigation, and five police reports from

ongoing and closed criminal cases. The city did not wait for a court

ruling to disclose the closed case reports, however; the records were

produced soon after Hodai requested them by their specific case

numbers. At oral argument on the motion to inspect, the court

ordered the city to provide a list of documents withheld and reasons

why, additionally ordering the parties to file briefs. The court also

concluded at the hearing that the records of the ongoing case should

be withheld because the investigation was sensitive and “release of

records from that would jeopardize” it.

¶6 After briefing by the parties, but without further

hearings, the trial court concluded in an unsigned ruling that all

documents produced in camera were properly withheld and it

denied all other requests for documents. Hodai appealed and we

suspended jurisdiction for the trial court to enter a final judgment.

See Ariz. R. Civ. App. P. 3(b), 9(c). The court having done so, we

have jurisdiction over the appeal pursuant to A.R.S. §§ 12-2101(A)(1)

and 12-120.21. See Ariz. R. P. Spec. Actions 8(a).

Discussion

¶7 Arizona’s public records law mandates “[public

records] shall be open to inspection by any person at all times

during office hours.” A.R.S. § 39-121. A person need not

demonstrate a particular purpose to justify disclosure. Bolm v.

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Custodian of Records of Tucson Police Dep’t, 193 Ariz. 35, ¶ 10, 969 P.2d

200, 204 (App. 1998) (“A person’s right to public records under

[§ 39-121] is not conditioned on his or her showing, or a court

finding, that the documents are relevant to anything.”). The fact that

the public record exists is sufficient to create a presumption

requiring disclosure. See Griffis v. Pinal Cty., 215 Ariz. 1, ¶ 8, 156

P.3d 418, 421 (2007). Nonetheless, a public officer may refuse release

or inspection of a public record if such disclosure “might lead to

substantial and irreparable private or public harm.” Carlson v. Pima

Cty., 141 Ariz. 487, 491, 687 P.2d 1242, 1246 (1984). Discretionary

refusal to disclose based on the best interests of the state is subject to

judicial scrutiny. Id. “Th[e] ‘best interests of the state’ standard is

not confined to the narrow interest of either the official who holds

the records or the agency he or she serves. It includes the overall

interests of the government and the people.” Phx. Newspapers, Inc. v.

Keegan, 201 Ariz. 344, ¶ 18, 35 P.3d 105, 109-10 (App. 2001). The

government has the burden of specifically demonstrating how

production of documents would be detrimental to the best interests

of the state. Cox Ariz. Publ’ns, Inc. v. Collins, 175 Ariz. 11, 14, 852

P.2d 1194, 1198 (1993).

¶8 Upon a determination that the documents at issue are

clearly public records within the meaning of the statute, the court

determines whether the government’s proffered explanation of

public harm outweighs the policy in favor of disclosure. Carlson, 141

Ariz. at 491, 687 P.2d at 1246; Judicial Watch, Inc. v. City of Phx., 228

Ariz. 393, ¶¶ 10, 17-18, 267 P.3d 1185, 1187, 1189 (App. 2011). The

parties do not dispute, and we agree, that the Stingray documents

are public records. Additionally, the trial court appropriately

undertook the balancing test pursuant to Carlson. We defer to the

trial court’s factual findings unless clearly erroneous, but review de

novo whether its denial of access was improper. Keegan, 201 Ariz.

344, ¶ 11, 35 P.3d at 108-09. We are not bound by the trial court’s

findings if clearly erroneous. City of Tucson v. Morgan, 13 Ariz. App.

193, 195, 475 P.2d 285, 287 (1970).

Quick Reference Sheets and Training Materials

¶9 Hodai argues the trial court erred by finding the city

properly withheld three “quick reference” sheets, an equipment

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authorization form, and a PowerPoint presentation. Hodai

articulated several reasons in the form of questions to support

disclosure: (1) whether TPD officers sought warrants before using

the technology, (2) whether use of the technology forces all cell

phones in the area to register their identity and location, (3) whether

data belonging to third parties is protected, and (4) whether the

government is candid with the courts about the capabilities of the

technology. The trial court recognized these rationales to be

“legitimate and important public purposes,” but irrelevant in this

context because all of the records simply showed how to use the

equipment.

¶10 To support its argument that nondisclosure of the

training materials served the best interests of the state, the city relied

on the affidavit of a special agent with the FBI. The agent stated that

disclosure of information about cell site simulators would “provide

adversaries with critical information about the capabilities,

limitations, and circumstances of their use . . . [and] provide them

the information necessary to develop defensive technology, modify

their behaviors, and otherwise take countermeasures designed to

thwart the use of this technology.”4 He also stated that even minor

details “may reveal more information than their apparent

insignificance suggests because, much like a jigsaw puzzle, each

detail may aid in piecing together other bits of information even

when the individual piece is not of obvious importance in itself.”

Hodai provided no evidence to the trial court to dispute the validity

of the FBI affidavit, which authorized the trial court to accept the

factual statements as uncontested. Cf. GM Dev. Corp. v. Cmty. Am.

Mortg. Corp., 165 Ariz. 1, 5, 795 P.2d 827, 831 (App. 1990) (in

summary judgment context, opposing party’s failure to provide

4The agent also noted the FBI considered information about

the equipment exempt from the federal Freedom of Information Act,

citing 5 U.S.C. § 552(b)(7)(E). That subparagraph, which prevents

disclosure of law enforcement techniques or procedures, has no

equivalent in Arizona’s public records law. See A.R.S. §§ 39-121

through 39-121.03.

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HODAI v. CITY OF TUCSON

Opinion of the Court

competent evidence controverting moving party’s affidavits, facts

alleged may be considered true).

¶11 Because neither Hodai nor his attorney had access to

documents submitted under seal, he could not address the trial

court’s conclusion that the public records only “show how to use the

equipment.” He instead argues, as he did below, that the injury

detailed by the FBI agent was speculative and not specific. Further,

he argues the agent’s testimony did not outweigh the presumption

favoring disclosure, citing Star Publishing Co. v. Pima County

Attorney’s Office, 181 Ariz. 432, 434, 891 P.2d 899, 901 (App. 1994).

But in Star Publishing, the county attorney had not reviewed the

documents in question and refused to produce them because they

“might be protected” by privilege, might be immune from

disclosure, or might impede a pending criminal investigation. Id. at

433-34, 891 P.2d at 900-01.

¶12 In contrast, the potential injury here is sufficiently

specific. An FBI agent experienced with the technology stated that

knowledge of how the equipment works “could easily lead to

development and employment of countermeasures.” That a person

experienced with the technology believes it could be “easily”

thwarted if the information was released is not merely a possible

harm based on a hypothetical situation, but one rooted in

experience. See Ariz. Bd. of Regents v. Phx. Newspapers, Inc., 167 Ariz.

254, 258, 806 P.2d 348, 352 (1991) (evidence that in “some cases”

publicity regarding university presidency candidates resulted in

“lesser qualified, but thicker skinned” candidates satisfied best

interests of state exception).

¶13 Hodai also argues the agent’s affidavit was speculative

because it did not address each item being withheld, again relying

on Star Publishing. There, however, no one had reviewed the

records. 181 Ariz. at 434, 891 P.2d at 901. Here, the city stated in its

answer that the FBI had reviewed the documents. And even if the

FBI agent who drafted the affidavit did not review all the documents

himself, he averred that information about how the specific

technology at issue here worked should not be released and

provided reasons. The city withheld documents to which those

statements applied. Star Publishing does not require the factual

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HODAI v. CITY OF TUCSON

Opinion of the Court

justification and review of documents to occur in a single step.

Therefore, for documents that provide information regarding how

the equipment works, we conclude the trial court could properly

find the best interests of the state outweigh the presumption that

disclosure is required.

¶14 Next, we must determine whether the documents

viewed in camera meet this requirement. The quick reference sheets

and the authorization form contain details about how the equipment

works as well as how to operate it. The PowerPoint presentation,

however, contains general information as well as some technical

details about the equipment. It also provides guidance to law

enforcement about how use of the equipment fits within the broader

context of the rules of criminal procedure, such as obtaining a search

warrant. Thus, the trial court’s conclusion that all information in the

training documents “show[s] how to use the equipment” was clearly

erroneous. See Merryweather v. Pendleton, 91 Ariz. 334, 338, 372 P.2d

335, 338 (1962) (finding is clearly erroneous where “‘reviewing court

on the entire evidence is left with the definite and firm conviction

that a mistake has been committed’”), quoting United States v. U.S.

Gypsum Co., 333 U.S. 364, 395 (1948); Castro v. Ballesteros-Suarez, 222

Ariz. 48, ¶ 11, 213 P.3d 197, 200-01 (App. 2009) (finding of fact

clearly erroneous if unsupported by such substantial evidence as

would allow “‘a reasonable person to reach the trial court’s result’”),

quoting Davis v. Zlatos, 211 Ariz. 519, ¶ 18, 123 P.3d 1156, 1161 (App.

2005); cf. Morgan, 13 Ariz. App. at 195, 475 P.2d at 287 (finding

supported by “no evidence” clearly erroneous).

¶15 The trial court’s broad finding prevented it from

addressing Hodai’s alternative argument that responsive documents

containing both sensitive and non-sensitive information must be

redacted and released. Phx. Newspapers, Inc. v. Ellis, 215 Ariz. 268,

¶¶ 22-23, 159 P.3d 578, 583-84 (App. 2007) (noting portions of

document may be released if confidential information redacted).

The ruling did not address the possibility of redacting documents to

protect the interest of the state. Moreover, apparently unbeknownst

to Hodai, the city provided for in camera inspection a version of the

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Opinion of the Court

PowerPoint with proposed redactions.5 In our review of the records

submitted under seal, we conclude that the city’s proposed

redactions removed information about how Stingray works in

particular instances while disclosing other important information,

such as its use in the justice system. The unredacted information

addresses the specific public policy rationales that the court found

legitimate and important, but does not compromise the ability of the

government to keep secret the technical information about Stingray.

Therefore, we reverse the trial court’s ruling withholding the

training PowerPoint and remand so the court may order disclosure

of the city’s redacted version of the PowerPoint.

Hodai’s Additional Arguments Regarding Training Materials

¶16 Hodai raises three more arguments with regard to the

information sheets and training materials. First, he contends the

trial court erred when it found as an alternative basis to withhold

documents that they “are subject to a qualified privilege to not

disclose sensitive law enforcement investigative techniques.” The

court relied on United States v. Van Horn, 789 F.2d 1492, 1507-08 (11th

Cir. 1986), a criminal disclosure case regarding the government’s

refusal to reveal the location and type of listening devices. The court

determined the government had a qualified privilege not to disclose

information that would allow criminals to thwart surveillance

technology. See id. The privilege was an extension of the state’s

privilege to withhold the identity of confidential informants to

promote effective law enforcement, subject to the right of a

defendant to present a full defense. See Roviaro v. United States, 353

U.S. 53, 59 (1957); accord Ariz. R. Crim. P. 15.4(b)(2) (disclosure of

informant information not required under specified conditions).

¶17 This qualified investigative technique privilege has

been recognized by other federal courts, e.g., United States v. Cintolo,

818 F.2d 980, 1002 & n.13 (1st Cir. 1987), but it has not been adopted

in Arizona. Generally, the privilege has been applied in criminal

5The city’s description of the documents filed did not mention

these redactions, nor did any of its arguments before the court.

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Opinion of the Court

cases to protect the public interest in effective law enforcement by

safeguarding information that if revealed would threaten the future

value of a surveillance technique. See Van Horn, 789 F.2d at 1507-08;

United States v. Rigmaiden, 844 F. Supp. 2d 982, 987 (D. Ariz. 2012). It

requires the court to balance the needs of the government with the

rights of the defendant. See Van Horn, 789 F.2d at 1508; Rigmaiden,

844 F. Supp. 2d at 988-89. This balancing is the functional equivalent

of the “best interests of the state” analysis required when the

government asks the court to preclude disclosure of public records

to protect the state’s interest in effective law enforcement. Griffis,

215 Ariz. 1, ¶ 13, 156 P.3d at 422. Because the balancing test in the

privilege parallels the best-interests analysis already conducted, we

need not consider whether such a privilege exists in Arizona or

should be applied in the context of a public records request.

¶18 Hodai also argues the trial court should have allowed

his counsel to view the documents under seal, and that the

information about how the surveillance technology works is already

publicly known, and therefore is not protected.6 Neither of these

arguments was preserved below, and we do not consider them for

the first time on appeal. See Harris v. Cochise Health Sys., 215 Ariz.

344, ¶ 17, 160 P.3d 223, 228 (App. 2007).

6Hodai is correct that some technical information regarding

the Stingray is already public. See, e.g., Owsley, supra, at 191-94;

Stephanie K. Pell & Christopher Soghoian, Your Secret Stingray’s No

Secret Anymore: The Vanishing Government Monopoly Over Cell Phone

Surveillance and Its Impact on National Security and Consumer Privacy,

28 Harv. J.L. & Tech. 1, 8-13 (2014). However, Hodai did not raise

this argument nor introduce any facts below to support it; moreover,

public availability of a record does mean disclosure is automatically

required. See Scottsdale Unified Sch. Dist. No. 48 of Maricopa Cty. v.

KPNX Broad. Co., 191 Ariz. 297, ¶¶ 3-7, 10-12, 955 P.2d 534, 536-38

(1998) (availability of teacher birth dates from other sources did not

require disclosure by school district).

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Open Case Report and Data Dump Exemplar

¶19 Hodai contends the trial court erred by withholding the

report from an open TPD investigation and an exemplar of a “data

dump” from the use of the equipment during the investigation. As

with the training documents, the city argued to the trial court that

these documents should not be released due to the best interests of

the state. The city does not directly respond to Hodai’s arguments

on appeal.

¶20 “[R]eports of ongoing police investigations are not

generally exempt from our public records law.” Collins, 175 Ariz. at

14, 852 P.2d at 1198. Therefore, the burden was on the city to show

the release of all or part of the file would be detrimental to the best

interests of the state. Id. As above, this required a showing of

specific, material harm. Ellis, 215 Ariz. 268, ¶ 22, 159 P.3d at 583.

¶21 The city relied on the affidavit of TPD Lieutenant Hall,

who stated that, in his “opinion and belief . . . the release of any

information about this case, including the case name, would be

detrimental to and would interfere with the further investigation of

that case.” The trial court found that the ongoing investigation was

“sensitive” and that “any release of records from that would

jeopardize the investigation.”7 Hodai does not contest the veracity

of Hall’s affidavit and the averments within it are not unusual;

therefore, the court’s findings are not clearly erroneous. Moreover,

unlike in Collins, the harm here is specific—even providing the name

or minor details of the investigation would link it to the use of the

equipment, revealing a sensitive investigative technique in an

ongoing case. Cf. 175 Ariz. at 14, 852 P.2d at 1198 (vague assertions

of possible harm insufficient to overcome legal presumption

favoring disclosure).

7Hodai contends the trial court failed to apply the Carlson test

regarding the open investigation, but the context of the court’s

ruling indicates it used the correct test.

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Opinion of the Court

¶22 Similarly, although the city argued the data dump

exemplar should be withheld because it is unintelligible without

technical viewing software and has “no independent evidentiary

value,” we agree with the trial court’s conclusion that the data is

sensitive. Even in its raw form, many lines of output contain date

and address information that can be linked to details of the ongoing

investigation. The trial court did not err by withholding the data

dump exemplar because in this context, release of any details of the

open case would result in specific, material harm.

Redactions in Original Production

¶23 Hodai contends the trial court erred by allowing the city

to redact the “names of private business partners” involved in

equipment purchases. Hodai did not raise this argument before the

trial court. We do not consider an argument not adequately

preserved below. Harris, 215 Ariz. 344, ¶ 17, 160 P.3d at 228.

FBI-Related Documents

¶24 Hodai argues the trial court erred by not ordering the

city to furnish “any and all records of communications (i.e., email,

email attachments, faxes, memos, letters) (generated from January 1,

2013 to December 9, 2013) in the possession of any TPD personnel

that pertain in any way to the Federal Bureau of Investigation (FBI).”

Hodai generally contends we should reject the court’s findings that

his search request was overly broad and burdensome.

¶25 The trial court, relying on out-of-state authority8 such as

Capitol Information Association v. Ann Arbor Police, 360 N.W.2d 262,

8Hodai also argues that the trial court’s reliance on out-of-state

cases was improper. Although he is correct that Arizona courts are

not bound by precedent from other states, see State v. Solis, 236 Ariz.

242, ¶ 14, 338 P.3d 982, 987 (App. 2014), our courts may look to cases

from other jurisdictions as persuasive authority. See, e.g., Baseline

Fin. Servs. v. Madison, 229 Ariz. 543, ¶ 13, 278 P.3d 321, 323 (App.

2012). Any error by the trial court in discussing out-of-state cases

despite the presence of on-point Arizona authority was harmless,

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263-64 (Mich. Ct. App. 1984), and Bader v. Bove, 710 N.Y.S.2d 379, 379

(N.Y. App. Div. 2000), found that Hodai had failed to identify the

records sought with reasonable specificity, and thus denied the

request as improper. The court observed that Hodai’s request for all

FBI-related communications would require the city “to search every

record in its possession” that included relevant keywords. The court

also found that “[t]he [c]ity has asked Plaintiff to narrow his

requests but he has refused.”

¶26 Hodai characterizes the trial court’s ruling as denying

his request simply because it was broad and argues that Arizona law

“rejects attempts to automatically limit the public’s ability to inspect

and copy public records based on volume,” citing Star Publishing,

181 Ariz. at 434, 891 P.2d at 901. He also relies on Congress

Elementary School District No. 17 of Yavapai County v. Warren, 227

Ariz. 16, ¶¶ 12, 14, 251 P.3d 395, 398 (App. 2011), for the proposition

that a records request may not be denied simply because compliance

would impose a significant administrative burden on the agency.

“‘Burden’ is not a recognized exception to the Arizona public

records laws,” he maintains.

¶27 Our public records statutes “evince a clear policy

favoring disclosure,” Carlson, 141 Ariz. at 490, 687 P.2d at 1245, and

the burden of proving that “redaction would be so unduly

burdensome . . . that inspection is not warranted” rests with the

party opposing inspection, Judicial Watch, 228 Ariz. 393, ¶ 17, 267

P.3d at 1189. To the extent Hodai maintains that unreasonable

administrative burden can never be a sufficient reason to deny a

public records request under Arizona law, he is mistaken. As our

supreme court has recognized, “sometimes the benefits of public

disclosure must yield to the burden imposed on . . . the government

itself by disclosure.” London v. Broderick, 206 Ariz. 490, ¶ 9, 80 P.3d

769, 772 (2003); accord Judicial Watch, 228 Ariz. 393, ¶ 17, 267 P.3d at

1189 (“the burden of producing public records can outweigh the

public’s interest in inspecting those records”); Arpaio v. Davis, 221

because the out-of-state cases cited provide the same rule as the

Arizona precedents, as discussed below.

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Ariz. 116, ¶¶ 21-22, 210 P.3d 1287, 1292 (App. 2009) (denial of “‘all-

inclusive, blanket’” records request which would have required

“‘unreasonable expenditure of resources and time’” to fulfill was not

abuse of discretion); cf. Ariz. R. Sup. Ct. 123(c)(1), (f)(4)(A)(i)

(regarding judicial-branch records requests). In determining

whether production poses an unreasonable administrative burden, a

court considers whether the general presumption of disclosure is

overcome by: (1) the resources and time it will take to locate,

compile, and redact the requested materials; (2) the volume of

materials requested; and, (3) the extent to which compliance with

the request will disrupt the agency’s ability to perform its core

functions. See London, 206 Ariz. 490, ¶ 9, 80 P.3d at 772; Judicial

Watch, 228 Ariz. 393, ¶ 18, 267 P.3d at 1189; Arpaio, 221 Ariz. 116,

¶ 20-22, 210 P.3d at 1292; accord Ariz. R. Sup. Ct. 123(f)(4)(A). The

analysis is, at its core, an inquiry into whether “the best interests of

the state in carrying out its legitimate activities outweigh the general

policy of open access.” Carlson, 141 Ariz. at 491, 687 P.2d at 1246.

¶28 Here, the city presented evidence to the trial court that

fulfilling Hodai’s FBI-related communications request would be

unreasonably burdensome, requiring “a search of nearly 1400 email

accounts, and review and redaction of law enforcement sensitive

information” for any FBI-related emails or email attachments

therein. Hodai also specifically requested any FBI-related “faxes”

and “letters.” Faxes and letters are ordinarily in hard copy form,

rendering an electronic keyword search impossible; thus, the court

did not err in suggesting that Hodai’s request would require the city

to perform a time-intensive and costly manual search of all paper

records TPD produced or received during the relevant time period

to locate the requested records. Cf. Bader, 710 N.Y.S.2d at 379

(manual search of decades’ worth of paper documents unreasonably

burdensome). The court did not err in finding the city met its

burden of proving that inspection is not warranted because

identifying and redacting all FBI-related communications would be

unreasonably burdensome.9 See, e.g., Judicial Watch, 228 Ariz. 393,

9 Hodaicontends that even if Arizona law does recognize

unreasonable administrative burden as falling within the “best

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¶ 17, 267 P.3d at 1189; accord Capitol Info. Ass’n, 360 N.W.2d at 264

(request for all correspondence between city police and FBI or other

federal law enforcement or investigative agencies during particular

time period was “absurdly overbroad” and would impose

“intolerable administrative burden[]”).

¶29 Hodai’s additional reliance on Star Publishing is

unavailing. The records requested in that case—“the computer

backup tapes of [the Pima County Assessor’s Office] containing all

documents for 1993”—were not unreasonably burdensome to locate

or compile. 181 Ariz. at 433, 891 P.2d at 900. Although they

contained voluminous electronic records, the backup tapes

themselves were readily at hand, such that the administrative cost of

actual production would have been low. 10 See id. (tapes already

compiled and transferred to agency before request show

compilation and transfer not unreasonably burdensome). Where

requested records are readily identifiable, as were the backup tapes,

the agency may not deny the request merely because the records

contain a large quantity of information. See id. at 432, 891 P.2d at

901. But that is not the issue before us. Here, the trial court found

that the requested FBI-related communications were not readily

identifiable to begin with, and its ruling was not erroneous.

interests of the state” exception, the public’s strong interests in

privacy and Fourth Amendment protections regarding the use of the

equipment, as well as public oversight and transparency, outweigh

the burden in this case. While there are important interests at stake,

a request for all documents referencing the FBI is not reasonably

focused on protecting those interests.

10Additionally,the defendant in Star Publishing failed to point

to or provide evidence of any specific risks that would result from

the disclosure of any specific files on the backup tapes, and thus

forfeited any argument about the administrative burden of redacting

the voluminous records on the tapes. See 181 Ariz. at 433-34, 891

P.2d at 900-01.

15

HODAI v. CITY OF TUCSON

Opinion of the Court

Adequacy of Search

¶30 Hodai argues the trial court erred by finding the

defendants had performed an adequate search for the requested

documents. The city has the initial burden to show it adequately

searched for responsive records. Phx. New Times, L.L.C. v. Arpaio,

217 Ariz. 533, ¶ 16, 177 P.3d 275, 281 (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., quoting

Rugiero v. U.S. Dep’t of Justice, 257 F.3d 534, 547 (6th Cir. 2001).

¶31 The city relied on averments in its answer, which was

verified by TPD Lieutenant Hall, and his affidavit that provides

foundation for his knowledge of the facts in question. Hall’s

affidavit states he was primarily responsible for use and

maintenance of the equipment, he had attended Harris training, and

he “was responsible for determining when and under what

conditions the equipment would be utilized.” The court adopted as

true the uncontested statements of Hall, which were made directly

in his affidavit or indirectly by verification of the answer:

The City says that it has searched for and

produced all records responsive to

[Hodai’s] requests for records concerning

Harris Corporation and its use of the Harris

Corporation technology. Lieutenant Hall,

who is knowledgeable about the City’s use

of this technology, stated in his affidavit

that he has thoroughly searched for the

records and identified those that exist.

¶32 Relying principally on Phoenix New Times, Hodai posits

that Hall was required to show the design of his search and to

demonstrate that the design was adequate to locate all responsive

records. His reliance is misplaced. Phoenix New Times concerned the

promptness of the agency’s response rather than the adequacy of its

search. 217 Ariz. 533, ¶ 13, 177 P.3d at 280. But to the extent the

court considered the adequacy of the agency search as a factor in

assessing the promptness of the response, it did not adopt the strict

showing Hodai contends we should recognize. Id. ¶¶ 23-25. Rather,

16

HODAI v. CITY OF TUCSON

Opinion of the Court

the agency must demonstrate its search was “‘reasonably calculated

to uncover all relevant documents.’” Lahr v. Nat’l Transp. Safety Bd.,

569 F.3d 964, 986 (9th Cir. 2009), quoting Zemansky v. EPA, 767 F.2d

569, 571 (9th Cir. 1985).

¶33 Here, the record requests involved a single piece of

equipment, infrequently used, that was maintained and monitored

11

by one TPD officer. The trial court could reasonably conclude that

the statements in the affidavit combined with the verification of

additional statements in the answer were sufficient to meet the city’s

burden to show the search was adequate. Unlike record requests

that involve many employees, multiple agencies, or massive

investigations, see, e.g., Phx. New Times, 217 Ariz. 533, ¶¶ 18, 23, 177

P.3d at 281, 282; Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1479-

80, 1483 (D.C. Cir. 1984) (60,000 pages concerning assassination of

Dr. Martin Luther King, Jr.), a simple search by one person with

knowledge may be sufficient. Additionally, as the court correctly

noted, Hodai had the opportunity to contest Hall’s statements but

did not do so.

¶34 Hodai also argues that because he obtained from the

county attorney documents related to the closed criminal cases that

were not in the files disclosed by the city, its search must have been

inadequate. But Lieutenant Hall’s affidavit refers to documents in

the closed cases as “reports,” intimating there are full case files that

were not produced. Moreover, assuming functionally equivalent

record requests to the separate agencies, “‘the failure of an agency to

turn up one specific document in its search does not alone render a

search inadequate.’” Lahr, 569 F.3d at 987, quoting Iturralde v.

Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003).

Hodai’s alternative argument does not vitiate the court’s conclusion

that substantial evidence supports the adequacy of the city search.

11Record requests that do not directly involve Stingray, such

as for FBI communications, are discussed in other sections.

17

HODAI v. CITY OF TUCSON

Opinion of the Court

Promptness of Response in Disclosing Closed Case Reports

¶35 Hodai argues on appeal, as he did below, that the four

closed case files produced after he filed suit were not “promptly

furnish[ed]” as required by § 39-121.01(D)(1), constituting wrongful

denial of the records under § 39-121.01(E). The trial court did not

specifically rule on the promptness of the response, but generally

denied all additional relief to Hodai. However, the court did not

consider whether the case files released to Hodai eight to ten months

after the first document request were sufficiently prompt. Whether

a response to a public records request was prompt is an issue we

review de novo, assessing promptness in the context of the

circumstances of the request. McKee v. Peoria Unified Sch. Dist., 236

Ariz. 254, ¶¶ 14-15, 338 P.3d 994, 998 (App. 2014).

¶36 The city does not respond to the argument on appeal.

Failure to respond may be considered a confession of error. In re

1996 Nissan Sentra, 201 Ariz. 114, ¶ 7, 32 P.3d 39, 42 (App. 2001). In

our discretion, however, we address the city’s argument as

presented to the trial court. See Savord v. Morton, 235 Ariz. 256, ¶ 9,

330 P.3d 1013, 1016 (App. 2014).

¶37 The city contended that until Hodai requested

particular criminal case files after he learned in litigation that

Stingray had been used in the investigations, there was no duty to

provide them as “work product” documents showing Stingray’s use.

It relied on Hall’s affidavit in which he opined that because the case

files do not contain “any reference to the technology,” they “are not

public records that respond to the Plaintiff’s requests.”

¶38 First, we reject the proposition that unless Stingray was

referenced in a particular investigation, the case file would be

shielded from a public records request. Cf. Nation Magazine, Wash.

Bureau v. U.S. Customs Serv., 71 F.3d 885, 889-90 (D.C. Cir. 1995)

(narrow search of agency index insufficient where responsive

documents not in index also existed). We note that officers were

instructed to “not mention [Stingray] in any supplement or

report”—or even to discuss it with county or state prosecutors. This

instruction would have shielded disclosure of a public record

without the assertion of a recognized exception.

18

HODAI v. CITY OF TUCSON

Opinion of the Court

¶39 Further, there is no indication in the record that it

would have been difficult for TPD to promptly locate and disclose

the records. As Hall acknowledged, he was the person “primarily

responsible for the use and maintenance” of Stingray, and in that

capacity could identify based on personal knowledge those

investigations in which it had been used. Even if we assume that

Hodai’s records request for “all records . . . . that pertain in any way

to ‘Stingray’ or ‘Stingray II’ cell phone tracking equipment” was

ambiguous, at a minimum TPD should have clarified whether

criminal investigations relying on Stingray were among the

requested documents. See Jarvik v. CIA, 741 F. Supp. 2d 106, 115

(D.D.C. 2010) (“An agency can ask a [records] requestor to clarify or

narrow an overly broad request.”). Without explanation from the

city regarding the facts of the delay, such as time needed to redact or

difficulty in locating the documents, eight to ten months is not

prompt. See Phx. New Times, 217 Ariz. 533, ¶¶ 20-25, 177 P.3d at 282

(143 days not prompt where agency assumed it had transferred

responsive documents); cf. McKee, 236 Ariz. 254, ¶¶ 20-21, 338 P.3d

at 999 (disclosure within twenty-four days prompt where many

documents were requested and agency needed to gather from

different departments). The trial court therefore erred in its implicit

finding that the four case files were promptly produced. 12

Attorney Fees

¶40 Hodai contends the trial court abused its discretion by

failing to award attorney fees under A.R.S. § 39-121.02.13 Although

Hodai requested attorney fees in both his complaint and his final

12Hodai also appears to argue the other documents the city

lodged for review in camera were not promptly produced and were

therefore wrongly denied. We need not decide whether the release

of any of these documents was “prompt,” because they have not

been released at all.

13Hodai also requests fees pursuant to other statutes but he

never raised these arguments below. We therefore do not address

them on appeal. See Harris, 215 Ariz. 344, ¶ 17, 160 P.3d at 228.

19

HODAI v. CITY OF TUCSON

Opinion of the Court

motion before the trial court, the court did not explicitly rule on the

issue. When we suspended the appeal to allow entry of a signed

written order, both parties agreed final judgment should be entered

and the court returned a judgment containing language of finality

and citation to Ariz. R. Civ. P. 54(c). On appeal, both parties treat

the attorney fee request as denied. We do the same.

¶41 Under § 39-121.02(B), “[t]he court may award attorney

fees and other legal costs that are reasonably incurred in any action

under this article if the person seeking public records has

substantially prevailed.” Both the determination that the petitioner

substantially prevailed and the award of fees after making such a

finding are at the discretion of the trial court. Democratic Party of

Pima Cty. v. Ford, 228 Ariz. 545, ¶¶ 8-10, 269 P.3d 721, 723-24 (App.

2012). Because we reverse the trial court’s rulings denying

disclosure of the redacted PowerPoint and concluding that the city

acted promptly in disclosing the closed files, we remand to allow the

court to determine in the first instance whether Hodai substantially

prevailed and whether to award attorney fees.

¶42 Hodai asks us to grant attorney fees and costs on appeal

under § 39-121.02(B). We deny attorney fees without prejudice for

Hodai to request in the trial court his fees incurred in this appeal.

We award costs on appeal pursuant to A.R.S. § 12-341 upon

compliance with Rule 21, Ariz. R. Civ. App. P.

Disposition

¶43 For the foregoing reasons, we affirm in part and reverse

in part. We remand to allow the trial court to order disclosure of the

redacted version of the PowerPoint and to determine whether to

award attorney fees in light of the disclosure of new materials, as

well as the promptness of the city’s response.

20