IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO

Beau Hodai, an investigative
reporter,
Plaintiff/Appellant,
v.
The City of Tucson, a municipal
corporation, and the Tucson Police
Department, a municipal agency,

2 CA-CV 2015-0018
)
)
)
) Pima County Superior Court
) NO. CV2014-1225
)
)
)
)
)
)
)
)

Defendants/Appellee.
______________________________________
APPELLANT’S REPLY BRIEF
______________________________________

Darrell L. Hill (# AZ 014127)
Daniel J. Pochoda (# AZ 014226)
ACLU of Arizona
3707 N. 7th Street, Suite 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Fax: (602) 650-1376
dhill@acluaz.org
dpochoda@acluaz.org
Attorneys for Plaintiff-Appellant

 TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................. ii
INTRODUCTION ....................................................................................................1
ARGUMENT ............................................................................................................2
I.

The Trial Court Improperly Applied the Carlson Balancing Test ...................2
A.

Even if Records Sought by Plaintiff Contain Confidential Information,
Redacted Records Still Must be Disclosed .............................................4

II.

FOIA Exemption 7(E) and Federal Criminal Cases Are Inapplicable to the
Present Matter ...................................................................................................7

III.

The Trial Court Gave Improper Weight to the Affidavit of Agent Morrison ..8

IV.

Defendants Cannot Assert the Interests of Any Non-Party............................10

V.

Plaintiff Requested Additional Hearings and Briefing at the Trial Court......11

VI.

Defendants Wrongly State Plaintiff Did Not Raise Matters with the Trial
Court ...............................................................................................................11

VII. The Trial Court’s Ruling that Plaintiff Failed to Specify the Records Sought
was Clearly Erroneous ....................................................................................13
VIII. The Trial Court’s Finding that Defendants Adequately Searched for Records
was Clearly Erroneous ....................................................................................16
IX.

Burden is Not A Recognized Exception to Arizona’s Public Records Laws 17

X.

Plaintiff Substantially Prevailed and is Entitled to Attorney Fees .................21

CONCLUSION.......................................................................................................22

 TABLE OF AUTHORITIES

Cases
Am. Civil Liberties Union of N. California v. Drug Enforcement Admin., No. C 1101997 RS, 2012 WL 5951312, at *2 (N.D. Cal. Nov. 8, 2012). .............................21
Carlson v. Pima Cnty., 141 Ariz. 487, 687 P.2d 1242 (1984)...................................2
Catrone v. Miles, 215 Ariz. 446, 160 P.3d 1204 (App. 2007)...................................6
Congress Elementary Sch. Dist. No. 17 of Yavapai Cty. v. Warren, 227 Ariz. 16,
251 P.3d 395 (App. Div. 1 2011) ...................................................................... 18, 20
Cox Arizona Publications, Inc. v. Collins, 175 Ariz. 11, 852 P.2d 1194 (1993) ..2, 9
Democratic Party of Pima Cnty. v. Ford, 228 Ariz. 545, 269 P.3d 721(App. 2012).
..................................................................................................................................21
Feshbach v. SEC, 5 F. Supp. 2d 774, 787 (N.D. Cal 1977) ......................................7
Hangartner v. City of Seattle, 90 P.3d 26 (2004). ...................................................15
Hiken v. Dep't of Def., No. C 06-02812 JW, 2012 WL 3686747 (N.D. Cal.
2012)………………………………………………………………………………21
Judicial Watch, Inc. v. City of Phoenix, 228 Ariz. 393, 267 P.3d 1185
(2011)……………………………………………………………………………… 4
KPNX-TV v. Superior Court In & For Cnty. of Yuma, 183 Ariz. 589, 905 P.2d 598
(App. 1995) ................................................................................................................4
Krohn v. Dep’t of Justice, 628 F.2d 195 (D.C. Cir. 1980). .....................................15
Long v. U.S. I.R.S., 932 F.2d 1309 (9th Cir. 1991)..................................................21

ii

 MAG Entertainment, LLC v. Division of Alcohol Beverage Control, 858 A.2d 1067
(N.J. Sup. Ct. App. Div. 2005).................................................................................15
Phoenix New Times, L.L.C. v. Arpaio, 217 Ariz. 533, 177 P.3d 275
(App. 2008). ...................................................................................................... 16, 21
Phoenix Newspapers, Inc. v. Ellis, 215 Ariz. 268, 159 P.3d 578 (App. 2007) .....2, 4
Phoenix Newspapers, Inc. v. Keegan, 201 Ariz. 344 (App. 2001)………........18, 19
Rosenfeld v. Dep’t. of Justice, 57 F.3d 803 (9th Cir. 1995) ......................................7
Scottsdale Unified Sch. Dist No. 48 v. KPNX Broad. Co., 191 Ariz. 297, 955 P.2d
534 (1998) ..................................................................................................................8
Semple v. Tri-City Drywall, Inc., 172 Ariz. 608, 838 P.2d 1369 (App. 1992). .......11
Star Pub. Co. v. Pima Cnty. Attorney's Office, 181 Ariz. 432, 891 P.2d 899 (App.
1994). ........................................................................................................ 8, 9, 14, 15
State ex. Rel. Morgan v. Strickland, 906 N.E.2d 1105 (Ohio 2009). ......................16
United States v. Rigmaiden, 844 F. Supp. 2d 982 (D. Ariz. 2012)............................8
W. Valley View, Inc. v. Maricopa Cnty. Sheriff’s Office, 216 Ariz. 225 (App. 2007)
..................................................................................................................................14
Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476 (D.C. Cir. 1984); ......................16
Statutes
5 U.S.C. § 552(a)(4)(E)............................................................................................21
5 U.S.C. § 552(b)(7)(E). ............................................................................................7
28 U.S.C. § 517 ........................................................................................................10

iii

 A.R.S. § 39–121 .................................................................................................. 2, 15
A.R.S. § 39-121.01(B) .............................................................................................21
A.R.S. § 39-121.01 (D)(1), ......................................................................................19
A.R.S. § 39-121.01 (D)(3.........................................................................................19
Rules
Arizona Supreme Court Rule 123 (f)(4)(A) ............................................................17
Other Authorities
New York Civil Liberties Union v. Erie County Sheriff’s Office, Index No. I 2014000206 ........................................................................................................................9
Justice Department Will Limit Use of Cellphone Eavesdropper, Nicholas Fandos,
New York Times, September 4, 2015......................................................................20
Martinez v. Chicago Police Department, 2014 CH 15338) ......................................9

iv

 INTRODUCTION
This case concerns the City of Tucson and Tucson Police Department’s failure
to meet the obligations of Arizona public records law. Plaintiff seeks public records
from Defendants to provide basic oversight of surveillance activities Defendants
have kept secret from the public, the media, and the courts.
Defendants’ position in this case is that it can withhold all records about the
performance of its duties from the public because (1) they may reveal sensitive law
enforcement techniques; and (2) the burden of responding to potentially voluminous
requests excuses Defendants from their responsibility to identify, locate and release
responsive records. To support these arguments, Defendants misinterpret federal
statutes and case law from outside jurisdictions while ignoring their clear obligations
under Arizona public records law. Defendants also seek to substitute the uninformed
opinions of outside parties in place of Defendants’ duties to locate responsive
records, redact necessary materials, and provide public records. Finally, Defendants
are incorrect in their claims that Plaintiff has not “substantially prevailed” for
purposes of awarding attorneys’ fees.
The trial court erred in adopting Defendants’ view. Arizona public records
law requires that Defendants demonstrate that a specific, material harm would result
from the release of the requested records. Defendants failed to meet their burden. In
addition, Defendants’ refusal to release records it admits it can locate and identify
because the potential release would be burdensome is contrary to Arizona case law
and the clear language of Arizona public records law. Finally, Defendants’ responses
to Plaintiff’s request were not prompt as required under the law and, because the
Defendants’ responses were triggered solely by Plaintiff’s lawsuit, Plaintiff is
entitled to attorneys’ fees.

1

 ARGUMENT
I.

The Trial Court Improperly Applied the Carlson Balancing Test
The Arizona Supreme Court held in Carlson “all records required to be kept

under A.R.S. § 39–121.01(B), are presumed open to the public for inspection as
public records” unless a statutory or judicially created exception applies. Carlson v.
Pima Cnty., 141 Ariz. 487, 491, 687 P.2d 1242, 1246 (1984); [Op.Br. 21-23]. To
overcome the presumption favoring disclosure, the Arizona Supreme Court has held
that it is incumbent on the public agency or official “to specifically demonstrate how
production … would be detrimental to the best interests of the state.” Cox Arizona
Publications, Inc. v. Collins, 175 Ariz. 11, 14, 852 P.2d 1194, 1198 (1993)
(quotations omitted). At all times, “the burden of showing the probability that
specific, material harm will result from disclosure, thus justifying an exception to
the usual rule of full disclosure, is on the party that seeks non-disclosure rather than
on the party that seeks access.” Phoenix Newspapers, Inc. v. Ellis, 215 Ariz. 268,
273, 159 P.3d 578, 583 (Ct. App. 2007) (internal quotations omitted).
The trial court erred when it did not require Defendants to demonstrate that
specific, material harm would result from the disclosure of each record requested by
Plaintiff. Only upon such a showing may a court find that “the best interest of the
state” exception overcomes the strong presumption favoring disclosure. Cox at 14.
Arizona appellate courts have consistently rejected the type of conclusory
statements Defendants rely on to justify their refusal to release the requested records.
[Op.Br. 24-25, 33, 38-40]. The Arizona Supreme Court has held that public officials
may not restrict access to public records based on “global generalities of the possible
harm that might result from the release.” Cox Arizona Publications, Inc. v. Collins,
175 Ariz. 11, 14, 852 P.2d 1194, 1198 (1993).
Plaintiff has offered ample evidence of the publicly known capabilities of cellsite simulator equipment to demonstrate that Defendants cannot meet its burden of
2

 showing that a specific, material harm would result from the release of the records
sought by Plaintiff. [Op.Br. 7-10, 26-31]. In contrast, Defendants have failed to point
to a single example that would demonstrate that any of the numerous previous
disclosures of records concerning cell-site simulator equipment have compromised
law enforcement techniques. An examination of the records at issue demonstrates
Defendants have not met their burden.
Defendants do not dispute that the data dump from the open police
investigation at issue in this case has “no independent evidentiary value” [Op.Br.
42] stating that the data dump has “no utility in and of itself.” [IR 25 p.3]. Defendants
do not dispute that releasing the data dump would not reveal a sensitive investigative
technique and has offered no other rationale for refusing to release those records.
[Op.Br. 42].
Neither do Defendants dispute that in general, records from open police
investigations are not exempt from disclosure under Arizona public records law,
[Op.Br. 37], or that the trial court made its ruling concerning the open investigation
at the initial hearing, prior to any argument or briefing by either side. [Op.Br. 16,
38-40]. Defendants did not attempt to demonstrate that all of the information from
the open investigation records was subject to confidentiality, nor did Defendant
argue that releasing the records would reveal sensitive investigative techniques.
Thus, Defendant failed to meet its burden and the trial court erred by not requiring
them to do so.
Defendants also failed to demonstrate that releasing the training materials and
equipment familiarization sheets would cause specific, material harm to an interest
of the state. [Op.Br. 19-37]. Defendants’ reliance on statements made by FBI Agent
Morrison does not meet this burden. Agent Morrison’s statements are conclusory
and speculative. Defendants do not dispute that Agent Morrison did not review the
requested records, is not familiar with Defendants’ practices, and has no first-hand
3

 knowledge of what the records contain. [See Section III]. Defendants’ rationale for
not releasing the records is further undermined by its admission on appeal that it no
longer uses the surveillance equipment at issue. [Def.Ans.Br. 1 fn1]. Defendants
cannot rationally claim that harm would result from the release of records concerning
surveillance techniques that it now claims it no longer uses.
A.

Even if Records Sought by Plaintiff Contain Confidential
Information, Redacted Records Still Must be Disclosed

Under the Carlson balancing test, a court must determine if confidential
information may be redacted from the record to facilitate disclosure. “Even if
portions of a document merit confidentiality, a practical alternative to the complete
denial of access would be deleting” confidential information. Phoenix Newspapers,
Inc. v. Ellis, 215 Ariz. 268, 273, 159 P.3d 578, 583 (Ct. App. 2007) (internal quotes
omitted). Confidentiality interests do not preclude the production of documents if
“the information affecting these interests can be redacted.” Judicial Watch, Inc. v.
City of Phoenix, 228 Ariz. 393, 396-397, 267 P.3d 1185, 1188-1189 (2011).
Defendants maintain that they met their burden by offering the entirety of the
records to the trial court for in camera review. However, the requirements of good
faith disclosure are not satisfied simply by requesting that a court determine what
records should be disclosed. KPNX-TV v. Superior Court In & For Cnty. of Yuma,
183 Ariz. 589, 594, 905 P.2d 598, 603 (App. 1995). In KPNX, the appellate court
held,
When the records custodian denies access to an entire public record and
asks the court to decide what portion must be disclosed, if any, the
custodian should demonstrate specific reasons and a good faith basis
for refusing access to the entire record … Assuming that the record can
be redacted, the custodian should consider disclosing what it can and
then submitting the entire record to the court for in camera review, with

4

 specifications of what has been disclosed and why public access should
be denied to the rest.” Id.
Defendants alone have the duty of redacting confidential information and
releasing the records. [Op.Br. 40-41]. As the Court in KPNX explained, “the
custodian of the record, rather than the trial court should make the initial redaction
effort.” KPNX at 594. Defendants offered no such redactions when submitting the
records to the trial court in camera and gave the court no guidance to determine
which material was confidential and which material could be released. [IR 10]. Thus,
the trial court was not in a position to determine whether the entirety of records
submitted to the court in camera warranted confidentiality and committed reversible
error by ruling for Defendants.
Plaintiff has objected to the method of in camera review from the start of this
litigation. [IR 14; IR 28 p. 8-10]. The procedure utilized by the trial court prevented
Plaintiff from fully arguing whether information contained in the records would
result in specific, material harm to the best interest of the state and whether
confidential information from the records could be redacted.
When conducting in camera review, the trial court should have allowed
Plaintiff’s counsel an opportunity to view the relevant documents under seal.
Neither the trial court nor Defendants offered any rationale as to why Plaintiff’s
counsel could not do so. As the Arizona Appeals Court explained in Catrone, when
a party makes a request to view materials that are presumed open to disclosure,
the interests in confidentiality may typically be satisfactorily protected
by in camera review and an order limiting disclosure of the
information to those with a need to know for purposes of the
litigation. Further, these interests can be protected at trial through the
sealing of the record and (if requested and appropriate) the closing of
the courtroom to certain portions of the trial proceedings where the

5

 confidential information is discussed. Catrone v. Miles, 215 Ariz. 446,
456, 160 P.3d 1204, 1214 (Ct. App. 2007) (internal citations omitted).
While Defendants state the open case contains matters of a sensitive nature,
they do not specify why confidential information cannot be redacted and the rest of
the records disclosed in accordance with Arizona public records law. Defendants
have not specified why information such as the dates of the investigation, the names
of detectives involved, the matter being investigated, or the equipment being used to
conduct surveillance should remain secret. None of the aforementioned material
would reveal sensitive law enforcement techniques, Defendants sole stated rationale
for not releasing requested records. Defendants have not met their burden of
demonstrating how specific, material harm to a best interest of the state would result
from the release of ancillary information from the open investigation.
Similarly, while Defendants maintain that the release of the equipment
familiarization sheets and training protocols would reveal sensitive investigative
techniques, Defendants fail to specify why information that does not reveal a
sensitive investigative technique, such as training dates, types of equipment officers
were trained to use, data retention protocols, names of trained officers, and training
titles should remain confidential.
Defendants fail to provide any support for their position based in the language
of the Arizona public records law or case law interpreting that statute. Instead,
Defendants present arguments based on inapplicable federal statutes, inapplicable
federal case law, and the irrelevant non-disclosure demands of a private for-profit
business (Defendants do not dispute they allowed Harris Corporation to make
redactions to materials released to Plaintiff [Op.Br. 5-7, 11-12; Def.Ans.Br. 3]).
Defendants’ attempts to deflect attention from the requirements of the Arizona
public records law are non-availing.

6

 II.

FOIA Exemption 7(E) and Federal Criminal Cases Are Inapplicable to
the Present Matter
Defendants argue that this Court should read the Freedom of Information

Act’s (FOIA) Exemption 7(E) into the Arizona statute’s “best interest of the state”
exception [Def.Ans.Br. 20]. However, Defendants fail to inform this Court of the
test federal courts have adopted to determine whether to apply the exemption. Nor
do Defendants describe how FOIA Exemption 7(E) is relevant to Arizona’s explicit
statutory scheme which supports a strong presumption in favor of disclosure of
records.
FOIA Exemption 7(E) exempts from disclosure law enforcement techniques
and procedures which “risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). To
invoke the privilege, agencies “must provide non-conclusory reasons why disclosure
of each category of withheld documents would risk circumvention of the law.”
Feshbach v. SEC, 5 F. Supp. 2d 774, 787 (N.D. Cal 1977). Further, the exemption
protects only investigative techniques that are “not generally known to the public.”
Rosenfeld v. Dep’t. of Justice, 57 F.3d 803, 815 (9th Cir. 1995). The Ninth Circuit in
Rosenfeld rejected the claim that a “more precise” application of a well-known
technique falls under Exemption 7(E) simply because the more precise application
is not generally known. Id. The Rosenfeld court held “[i]t would not serve the
purposes of FOIA to allow the government to withhold information to keep secret
an investigative technique that is routine and generally known.” Id.
Defendants do not dispute that information about Stingray and cell-site
simulators are “routine and generally known” [Op.Br. 26-31; Def.Ans.Br. 19]. Local
law enforcement and federal civilian law enforcement agencies regularly use cellsite simulators, have informed the public of their use, and have released records
regarding their use. [Op.Br. 7-10, 27-31]. In addition, private citizens have created
their own cell-site simulator devices. Id.
7

 Defendants’ reliance on Rigmaiden is misplaced, as the court in Rigmaiden
was not interpreting FOIA or any state records statute, and demonstrates the danger
of attempting to shoehorn criminal rulings into decisions concerning Arizona public
records law. [Op.Br. 31-32]. The public interests Plaintiff seeks to vindicate under
Arizona public records law are very different than the interest of a criminal defendant
facing prosecution. In Rigmaiden, the court noted, “the government has produced
substantial information regarding its efforts to locate defendant’s aircard” applying
the law enforcement exemption to a limited set of documents not necessary for the
defense. United States v. Rigmaiden, 844 F. Supp. 2d 982, 992 (D. Ariz. 2012). A
criminal defendant’s sole interest in obtaining records in a criminal proceeding is to
gather evidence for his defense. In contrast, Plaintiff seeks records to monitor the
activities of a government agency. This Court is tasked with interpreting the Arizona
public records law in light of the clear presumption favoring disclosure and release
of public records. [Op.Br. 19-21]. “The purpose of the Public Records Law, like the
FOIA, is to open agency action to the light of public scrutiny. The Public Records
Law exists to allow citizens to be informed about what their government is up to.”
Scottsdale Unified Sch. Dist v. KPNX Broad. Co., 191 Ariz. at, 303, 955 P.2d at 540
(1998) (citation/quotations omitted).
III.

The Trial Court Gave Improper Weight to the Affidavit of Agent
Morrison
Arizona appellate courts have clearly held that conclusory statements from

persons who have not reviewed the records subject to disclosure cannot support
exceptions to Arizona public records law because they do not demonstrate specific,
material harm to an interest of the state. [Op.Br. 24-25, 33, 40-43]; See also Star
Publ’g, 891 P.2d 899, 901 (1994). Defendants do not dispute that Agent Morrison
did not review the records at issue in this case, [Op.Br. 33-35], saying only that the
records were reviewed by the FBI. [Def.Ans.Br. 5-6]. Agent Morrison is not
8

 knowledgeable about the records at issue or Defendants use of cell-site simulator
equipment and the trial court erred by giving weight to his affidavit.
In his affidavit, Morrison does not specifically address Plaintiff’s record
requests, the records in Defendants possession, or the ways in which Defendants
have deployed the equipment. Morrison makes the conclusory claim that “disclosure
of what appears to be innocuous information about the use of cell site simulators
would provide adversaries critical information” that would allow them to “take
countermeasures designed to thwart the use of this technology” [IR 9 p. 10-13]
without ever having reviewed any of the records at issue in this case.
Further, Morrison’s affidavit is replete with conclusory claims lacking
foundation. Morrison states that the FBI “has always asserted that cell-site
simulators are exempt from discovery” and discusses what the FBI has done “as a
matter of policy.” [IR 9 p. 10-13]. Morrison’s statements and FBI policies do not
however control the analysis of this Court when interpreting the requirements under
Arizona public records law.
These types of broad, conclusory, unsubstantiated, and speculative claims
echo the claims the Arizona Supreme Court rejected in Cox v. Collins and Star
Publ’g Co. v. Pima Cnty. Attorney’s Office. [See Section I of this brief; Op.Br. 3334]. Finally, and clearly demonstrating the boilerplate nature of the affidavit, Agent
Morrison has submitted nearly identical affidavits in other states, including in state
courts in Illinois (Martinez v. Chicago Police Department, 2014 CH 15338) and
New York (New York Civil Liberties Union v. Erie County Sheriff’s Office, Index
No. I 2014-000206). In Erie County, the court rightly ignored Agent Morrison’s
uninformed opinion and ordered the release of records concerning cell-site
simulators. In this case, the trial court erred in giving weight to an opinion from a
witness who did not review the relevant materials.
9

 IV.

Defendants Cannot Assert the Interests of Any Non-Party
As the trial court noted, the FBI, the U.S. Department of Justice and the United

States are not parties to the present action. [IR 33]. Agent Morrison is only a witness
in this case and cannot advance legal arguments, [IR 33 p.5], nor does he have the
authority to assert the interests of the United States government in civil proceedings.
Only certain parties may file a Statement of Interest on behalf of the U.S. in a case
pending in state court [28 U.S.C. § 517 1]; those parties have chosen not to do so in
this matter. In their absence, Defendants cannot assert a non-party’s interest to justify
their own refusal to release requested records under the state public records law.
This case does not concern the FBI, Department of Justice or national security.
Harris Corporation, a for-profit private business, sold surveillance equipment
directly to Defendants, [IR 4 p. 19-26], purportedly to assist Defendants with
“ongoing abduction/kidnapping cases.” [IR 9 p. 14 ¶ 6]. Defendants have maintained
throughout this litigation that they do not have any agreement with the FBI
regulating the use of the equipment. [Def. Ans. Br. p. 7]. The only evidence in the
record states that the equipment was purchased from a private contractor for use in
civilian police activities. [IR 9 p.14 ¶ 6; Def.Ans.Br. 4]. As the United States
government has chosen to not intervene, it was improper for the trial court to
consider the interests of a non-party. [IR 33 p.5, the trial court writes “the Court must
consider how disclosure of these records could affect the interests of those law
enforcement agencies and the public they serve.”] This Court should decide the
matter in light of Defendants demonstrated interest, and not the speculative interest
of non-parties.

1

28 U.S.C. § 517 states in relevant part “The Solicitor General, or any officer of
the Department of Justice, may be sent by the Attorney General to any State or
district in the United States to attend to the interests of the United States in a suit
pending in a court of the United States, or in a court of a State.”
10

 V.

Plaintiff Requested Additional Hearings and Briefing at the Trial Court
Defendants inaccurately state that Plaintiff never asked the trial court for

additional hearings. [Def.Ans.Br. 19]. Plaintiff did, in fact, seek more time to
conduct discovery and additional hearings from the onset of this case. [IR 14 p. 7:1516]. When Defendants prematurely submitted records to the Court for in camera
inspection, Plaintiff objected that it did not have proper time to conduct discovery.
Id.
At the only hearing in the court below, the trial court ordered Defendants to
submit a full index of records responsive to Plaintiff’s requests and for each side to
state whether or not they believed additional hearings were necessary. [IR 28 Ex. A
p. 19-20]. Plaintiff followed the court’s clear order and asked the trial court for
additional hearings, stating “further discovery, hearing and briefing is necessary” to
determine if Defendants complied with the public records law. [IR 28 p. 17]. The
trial court ignored Plaintiffs request and chose to rule on the entire case, even parts
where it had heard no argument or considered briefing. [Op.Br. 15-16].
VI.

Defendants Wrongly State Plaintiff Did Not Raise Matters with the
Trial Court
The rule that a party may not raise new legal theories at the appellate stage is

“not jurisdictional but instead is procedural and exists for orderly court
administration.” Semple v. Tri-City Drywall, Inc., 172 Ariz. 608, 610, 838 P.2d
1369, 1371 (Ct. App. 1992). Defendants had ample notice of Plaintiff’s arguments
because they are consistent with arguments made at the trial court and have not
been raised for the first time on appeal.
Contrary to Defendants’ claims, [Def.Ans.Br. 16-17], Plaintiff has
consistently maintained that Defendants failed to demonstrate how specific, material
harm would result from the release of the records, repeatedly raising the issue with
the trial court. Indeed, Plaintiff raised the issue when objecting to Defendants
11

 improper in camera submission [IR 14 p. 3:12-4:14; p. 7:21-23] and when objecting
to Defendants failure to provide a complete index of records [IR 28 p.5:12-8:18].
Remarkably, Defendants answering brief attempts to use the very argument (the
mosaic theory) it states Plaintiff may not discuss. [Def.Ans.Br. 16-18]. Defendants
raised the mosaic theory as a defense at the trial court level, [IR 9 p.13-14], offer it
as the basis for their refusal to release records, [IR 25 p.3:7-18], and the trial court
cited the “mosaic theory” extensively in its ruling. [IR 33 p.4]. It seems only
appropriate that Plaintiff would discuss the theory in its opening brief. By raising it
themselves, Defendants had ample notice that such an argument would be made.
Defendants claim that Plaintiff failed to raise the issue that information about
cell-site simulators is publicly available is also without merit. [Def.Ans.Br. 18]
Defendants note that at the trial court level, Plaintiff “alleged general information
such as can be found in newspaper articles” to argue that the techniques and
capabilities of cell-site simulator equipment are publicly known. [Def.Ans.Br. 19].
However, Defendants claims that since Plaintiff did not reference the capabilities of
the specific technology at issue, which Defendants have been actively seeking to
hide, the issue can’t be raised on appeal. [Def.Ans.Br. 19]. Such a result would be
absurd.
Defendants are the party arguing that the public records must remain secret.
Plaintiff simply seeks to counter that argument by demonstrating that there is already
information publicly available about cell-site simulator technology, including
information about the device Defendants possess, which has not adversely impacted
Defendants ability to conduct investigations. [Op.Br. 7-10, 26-31]. Defendants
cannot continue to argue for the non-disclosure of information about technology that
is not secret and is publicly available, including information on how to create, use
and evade cell-site simulator technology. Id. Defendants admit that Plaintiff did raise
the argument with the trial court, [Def.Ans.Br. 19], but asserts that since Plaintiff
12

 did not use the exact same examples at both the trial court and appellate level, this
Court should not consider the information. The Court should disregard Defendants’
flawed reasoning.
VII.

The Trial Court’s Ruling that Plaintiff Failed to Specify the Records
Sought was Clearly Erroneous
Defendants argue that the trial court did not base its ruling on the burden to

Defendants, but upon Plaintiff’s failure to identify records sought with specificity.
[Def.Ans.Br. 26-27]. Defendants’ claims about the basis of the trial court’s ruling
and the contention that Plaintiff failed to specifically identify records sought are
without merit.
The trial court’s ruling clearly frames the issue as whether Plaintiff’s records
request creates an undue burden on Defendants. [IR 33 p. 8]. The trial court writes
“[a]s for Plaintiff’s request for records concerning the FBI, the City says that as a
large metropolitan police force, TPD would have to search voluminous records to
find those that might include the term ‘FBI.’ The question becomes, does the
Arizona public records law require the City to search every record in its possession
for records that may include certain identified terms?” The trial court considered the
wrong question. The issue before the court below was whether Defendants have the
ability to identify, locate and produce records concerning the FBI for a one year
period. The answer is clearly yes.
Defendants do not dispute that it has the ability to identify and locate the
public records Plaintiff requested, rendering the trial court’s ruling that Plaintiff did
not identify the requested records with enough specificity clearly erroneous.
Defendants state “the city is willing to start providing records for copying or
inspection, but is not willing to spend inordinate time and expense to prepare records
that will never be reviewed.” [IR 30 p.5]. Importantly, Defendants never argued to
the trial court, and do not now argue, that they cannot identify records related to the
13

 FBI and Harris Corporation. [Def.Ans.Br. 27-31]. Defendants only argue that the
burden to produce records that “will never be reviewed” absolves them from their
obligations under Arizona public records law. [Def.Ans.Br. 27-31; IR 30 p. 5].
As discussed in Plaintiff’s Opening Brief, the trial court’s interpretation of
Star Publishing is clearly erroneous as it would lead to an absurd result where the
public would be better off requesting all records from the Tucson Police Department
instead of specifying a specific set of records. [Op.Br. 49-51]. Importantly, the
Defendant in Star Publishing also argued that it should not have to produce a
voluminous set of records because some of those records might be undiscoverable.
Star Pub. Co. v. Pima Cnty. Attorney's Office, 181 Ariz. 432, 434, 891 P.2d 899, 901
(Div. 2, App. 1994). The Star Publishing court rejected that argument, holding that
claims about the potential sensitivity of information contained in public records does
not excuse an agency from having to release the documents. Id.
Defendants severely mischaracterize the court’s holding in W. Valley.
[Def.Ans.Br. 31]. The W. Valley court held that because Plaintiff sought only a
single, easily identifiable record, Defendant must provide records to Plaintiff on a
rolling basis. W. Valley View, Inc. v. Maricopa Cnty. Sheriff’s Office, 216 Ariz. 225,
228-229 (App. 2007), ¶¶ 10-15. The court stated, “we do not construe section 39–
121.01(D)(1) to require the submission of separate seriatim requests for copies of
each successive record when what the requester wants is every record within a
clearly articulated and defined category of records.” Id. at ¶ 10. Instead of limiting
an agency’s duty to respond to requests, W. Valley expands the duty, requiring
production of future records that have not been created. Id. at ¶ 10. Nothing in W.
Valley indicates that the court sought to limit the scope of a complainant’s request.
Finally, the trial court and Defendants reliance on rulings by other
jurisdictions interpreting substantially different public record laws is clearly
erroneous. Arizona appellate courts have long held that they are not bound by
14

 precedent from other jurisdictions. [Op.Br. 52-53]. Arizona’s public records law is
clear - public officials may not limit the public’s ability to inspect public records
based upon the breath of the request. As the Star Publishing court states “[the county
attorney] argues that the request was too broad, that the newspaper, in effect, wanted
to see all public records of the assessor's office. But under A.R.S. § 39–121, such
records ‘at all times during office hours shall be open to inspection by any person.’
There is no statutory right created to allow the county attorney to limit the scope of
public interest in public business.” Star Pub. Co. v. Pima Cnty. Attorney's Office,
181 Ariz. 432, 434, 891 P.2d 899, 901 (App. 1994). The trial court abused its
discretion by writing a statutory limit into the public’s right to request records where
none exists.
Further, the trial court and Defendants misapply the rulings of the other
jurisdictions they reference. In MAG Entertainment, LLC v. Division of Alcohol
Beverage Control, cited by the trial court, the Defendant refused to respond to
Plaintiff’s request partly because “the request was not limited to a particular time
frame.” 858 A.2d 1067, 1070 (N.J. Sup. Ct. App. Div. 2005). In the present matter,
Plaintiff’s request for FBI records is limited to a specific time frame (January 1, 2013
to December 13, 2013).
In Hangartner v. City of Seattle, Plaintiff sought “to inspect all books, records,
documents of every kind and the physical property of the Elevated Transportation
Company.” Hangartner v. City of Seattle, 90 P.3d 26, 28 (2004). Hangartner is
distinguishable because that litigant did not seek to a specific set of records, but
wanted to search through every record the City ever created. Id.
The trial court quotes dicta in Krohn v. Department of Justice. In Krohn, the
court found Plaintiff’s request was for “data not records.” Krohn v. Dep’t of Justice,
628 F.2d 195, 198 (D.C. Cir. 1980). The Krohn court ruled that the “agency cannot
be compelled to create the transcripts necessary to produce the data, information and
15

 statistics that appellant requested.” Id. at 198. In the present instance, Plaintiff has
not requested that Defendant create any records or provide any analysis. Plaintiff
simply requests Defendant release documents in its possession.
The trial court’s reliance on State ex. Rel. Morgan v. Strickland is similarly
misplaced, as it quotes dicta and ignores the central holding which supports
Plaintiff’s claim. State ex. Rel. Morgan v. Strickland, 906 N.E.2d 1105 (Ohio 2009).
In Morgan, the trial court sided with the Plaintiff, who received some 6,100 pages
of initial records with the court ordering “a limited writ of mandamus to compel
[Defendant] to continue reviewing the remaining responsive records and to provide
copies of them to [Plaintiff] within a reasonable time.” Id. at 1110. In contrast to the
trial court’s erroneous interpretation, Morgan supports Plaintiff’s position that
Defendants must search for and compile records even relating to potentially
voluminous requests.
VIII.

The Trial Court’s Finding that Defendants Adequately Searched for
Records was Clearly Erroneous

The record does not support Defendants’ contention that it conducted an
adequate search for records. [Op.Br. 43-49]. The trial court’s ruling is based upon a
misreading of the facts and law at issue in this case and is clearly erroneous.
At all times, Defendants have the burden of demonstrating that they
adequately searched for all records responsive to Plaintiff’s claim. Phoenix New
Times, L.L.C. v. Arpaio, 217 Ariz. 533, 538-539, ¶¶ 15-16, 177 P.3d 275 (App.
2008). Defendants search for requested records must be “reasonably calculated to
uncover all relevant documents.” Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476,
1486 (D.C. Cir. 1984); Phoenix New Times, L.L.C., 217 Ariz. at 539. In an attempt
to show that it met its burden, Defendants offered only the affidavit of Lieutenant
Hall. [IR 9 p. 14-16]. Defendants do not dispute that Lt. Hall’s search for records
responsive to Plaintiff’s three record requests was limited only to cases that he
16

 personally knew cell-site simulator equipment was utilized and training
presentations he created. [IR 9 p. 15-16, ¶¶ 7, 10-12]. Lt. Hall does not state he was
responsible for responding to each part of Plaintiff’s request, ignoring the majority
of Plaintiff’s request in his affidavit. In particular, it is undisputed that Lt. Hall did
not search for records relating to communications with Harris Corporation, CNAU
or the FBI. [IR 9 p.14-16]
Lt. Hall specifically states that he did not search for responsive records in
other cases because the Department’s practice of obscuring mention of cell-site
simulator equipment prevents such searches. [IR 9 Hall p. 14 ¶ 13; Def.Ans.Br. 5].
The Defendants have not offered any evidence that they searched for records relating
to the FBI, or communications between Defendants and Harris Corporation. To the
contrary, Defendants have maintained throughout this litigation that although it can
locate and identify the relevant records, it should not be forced to produce them
because of the burden they would endure. [Def.Ans.Br. 28-31]. In light of these
undisputed facts, the trial court’s conclusion that Defendants adequately searched
for records is clearly erroneous. The record demonstrates that Lt. Hall’s search was
narrow and not designed to locate the majority of records responsive to Plaintiff’s
requests. [Op.Br. 44].
IX.

Burden is Not A Recognized Exception to Arizona’s Public Records
Laws
Ignoring the clear mandate in Arizona public records law that public records

shall be open to inspection by any person at all times, Defendants ask this court to
consider the number of man-hours it may take to comply with Plaintiff’s requests 2
2

Defendant warns this court that Appellant’s “position would allow a person to
come to the Court of Appeals and demand all of its records for the past year that
contain the word ‘appeal.’” Defendant’s example is particularly inappropriate
because Arizona Supreme Court Rule 123 (f)(4)(A) permits the custodian of
records to deny a requests that “create an undue financial burden on court
17

 [Def.Ans.Br. 28-31] even as it acknowledges that burden does not exempt an agency
from its duty to provide public records. [Def.Ans.Br. 26]. “Burden” is not a
recognized exception to the Arizona public records laws and should not be written
into the statutory language by this Court. [Op.Br. 49-53].
No Arizona court has ever upheld an agency’s claim that furnishing public
records would be so unduly burdensome that the agency is excused from the duty to
provide records under Arizona public records law. To the contrary, Arizona courts
have held that the burden of responding to public records requests does not excuse
their non-production. [Op.Br. 49-53]; Cong. Elementary Sch. Dist. No. 17 of Yavapai
Cnty. v. Warren, 227 Ariz. 16, 19 ¶¶ 12,14 (App. 2011)(agency’s assertion that it
would take “more than 417 hours, thereby diverting staff from teaching and
classroom duties” to respond to record requests failed to excuse agency from its
obligation to produce records); Phoenix Newspapers, Inc. v. Keegan, 201 Ariz. 344,
349-51 (App. 2001) (rejecting state’s argument that expense and burden excused it
from complying with a public records request for inspection and copying of AIMS
test questions).
In addition, Defendants have failed to provide any evidence to support their
contention that responding to Plaintiff’s request would create an undue burden. The
City of Tucson employs over 5,000 persons in dozens of departments. 3 Defendants
do not provide the court with any testimony as to: the number of man-hours it would
take to compile Plaintiff’s request, Defendants’ technical capabilities, Defendants’
procedures and methods for responding to record requests, the details of its search
for the records in this case, or the costs of conducting such a search. All that is
offered is speculation by Defendants’ attorneys. Nor have Defendants provided any
operations.” No such statutory provision applies in this case and the court should
not write one into the statute.
3
https://www.tucsonaz.gov/human-resources
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 testimony as to how Plaintiff’s request is substantively different from requests for
information it receives on a regular basis. Defendants have failed to offer any
testimony as to the precise burden that its employees would face in responding to
Plaintiff’s request for records. Given the size of the agency and the City of Tucson,
and the fact that both regularly respond to requests for records, any burden on
Defendants would be minimal.
The Arizona public record law allows Defendants to offset the burden of
copying records by charging the requester fees, A.R.S. § 39-121.01 (D)(1), or
allowing the requester to personally inspect the records rather than the agency
copying and mailing the records to the requester. A.R.S. § 39-121.01 (D)(3).
Defendants have not shown why these statutory accommodations are insufficient to
address Defendants concerns. Instead, Defendants seek to impermissibly add their
own exceptions to the public records law to obstruct Plaintiff and the public from
requesting records about Defendants’ activities.
Assuming arguendo that this Court accepts Defendants’ claim that burden can
excuse compliance with the statute, the Court must balance that burden against the
public interest in the records sought. Keegan, 201 Ariz. at 351, ¶ 30. It is hard to
imagine a case where the “public interest that the plaintiff seeks to vindicate in
requesting these documents” could be stronger. Id. Defendants do not dispute that
cell site simulator equipment, including equipment the city has used, collects the
personal data of third parties who are not subject to criminal investigations,
including text messages, call history, location data, and emails. [Def.Ans.Br. 1;
Op.Br. 7-10]. Defendants admit to using the location tracking equipment without a
warrant or any other form of judicial review. [IR 33 p.7; IR 9 p.16 ¶14]. In addition,
“as a matter of TPD practice, any written reference to the use of the technology in
TPD reports” is purposely hidden. [Def.Ans.Br. 5].
19

 These troubling admissions call for heightened public scrutiny and strengthen
arguments that Defendants cannot use “burden” as an excuse to refuse to provide
public records. Defendants do not dispute that the Fourth Amendment rights of
innocent bystanders are implicated by use of the surveillance. [Op.Br. 1, 10]. 4
Defendants hide the use of surveillance equipment from the public, the media, and
the courts by making records about surveillance equipment indistinguishable from
other search methods. [IR 9 p.14-16; Def.Ans.Br. 5]. Defendants then claim that it
would be an undue burden to release the records it has purposely hidden. This Court
should not let such an absurd result stand.
Without enforcement of the Arizona public records law, no party, person, or
institution will be allowed to provide oversight of Defendants use of surveillance
equipment. Defendants’ claim that the release of information about cell-site
simulators in other jurisdictions lessens the public need for release of information
about the use of that technology by Defendants is completely without merit.
[Def.Ans.Br. 21]. The “core purpose of our public records law is to give the public
access to official records and other government information so that [the public] may
monitor the performance of government officials and their employees.” Congress
Elementary Sch. Dist. No. 17 of Yavapai Cty. v. Warren, 227 Ariz. 16, 18, 251 P.3d
395, 397 (App. Div. 1 2011) (citations/quotations omitted). Plaintiff seeks disclosure
of records to ascertain the surveillance activities of the Defendants. The release of
information in other jurisdictions does not diminish or eliminate Defendants’
responsibility under Arizona public records law.

4

In contrast to Defendants secrecy, the Justice Department is now requiring
“federal agents to seek warrants before using … equipment that can locate and
track cellphones.” Justice Department Will Limit Use of Cellphone Eavesdropper,
Nicholas Fandos, New York Times, September 4, 2015.
20

 X.

Plaintiff Substantially Prevailed and is Entitled to Attorney Fees
Defendants do not dispute that it released hundreds of pages of records related

to four closed investigations only after Plaintiff brought suit. [Def.Ans.Br. 5]. Nor
do Defendants dispute that it had the burden below to establish that its responses to
Plaintiff’s record requests were prompt. See Phoenix New Times, 217 Ariz. at 538,
¶ 15.
A.R.S. 39-121.01(B) states “[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.” Our state courts have not created
a test for determining when a party substantially prevails, holding only that a court
has discretion under the statute to award attorney fees to the prevailing party.
Democratic Party of Pima Cnty. v. Ford, 228 Ariz. 545, 549, 269 P.3d 721, 725 (Ct.
App. 2012).
However, the Ninth Circuit Court of Appeals has devised a test under FOIA
that is instructive in the present situation. Under FOIA, “[t]he court may assess …
reasonable attorney fees and other litigation costs reasonably incurred in any case
under this section in which the complainant has substantially prevailed … A
complainant has substantially prevailed if the complainant has obtained relief
through … (2) a voluntary or unilateral change in position by the agency.” 5 U.S.C.
§ 552(a)(4)(E). The Ninth Circuit holds that a party has substantially prevailed when
he can demonstrate “(1) his filing of the FOIA action was necessary to obtain the
information sought and (2) the action had a “substantial causative effect” on the
ultimate receipt of that information. Id. (emphasis in original). Long v. U.S. I.R.S.,
932 F.2d 1309, 1313 (9th Cir. 1991); See also Hiken v. Dep't of Def., No. C 0602812 JW, 2012 WL 3686747, at *2 (N.D. Cal. Aug. 21, 2012); Am. Civil Liberties
Union of N. California v. Drug Enforcement Admin., No. C 11-01997 RS, 2012 WL
5951312, at *2 (N.D. Cal. Nov. 8, 2012).
21

 In this case, it is undisputed that Defendants only began to gather records
related to their use of cell-site simulator equipment, including the four closed cases
it voluntarily released to Plaintiff, after litigation commenced. [IR 13 p.3 3:14-22;
Def. Ans. Br. p. 6]. Had Plaintiff not brought suit, Defendants would not have
searched for or provided the requested records. Thus, Plaintiff’s suit had a
“substantial causative effect” in the ultimate release of records. The trial court erred
when it did not award Plaintiff’s attorneys’ fees.
CONCLUSION
Plaintiff respectfully requests that the judgment below be reversed, that
Defendants be ordered to produce public records responsive to these requests, and
that Plaintiff be awarded its reasonable costs and attorneys’ fees incurred below and
on appeal.
RESPECTFULLY SUBMITTED this 4th day of September, 2015.

By: /s/ Darrell L. Hill
Daniel J. Pochoda
Darrell L. Hill
ACLU Foundation of Arizona
3707 North 7th Street, Suite 235
Phoenix, AZ 85014
Attorneys for Plaintiff-Appellant Hodai

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