Thrust and Parry

When a Tempe cop was accused of a brutal sexual assault on an ASU student, the City of Tempe responded with an assault on the state's public-records law

Tempe has released disciplinary information about police officers in the past. But in this case, city officials declined.

Since this was the third go-round with Tempe in less than a year, Bennett and his editor, Jim Ripley, decided to get some expert help. They retained Dan Barr, a Phoenix lawyer considered one of the state's leading attorneys on media and public information issues. KPNX-TV, which also had been turned down by the city, joined them.

"This was just the last straw," Ripley, the Trib's managing editor, says.
Tempe officials at first said the paper couldn't have the records at all because they'd been handed over to Glendale as part of the criminal investigation of Ferrin. That meant the paper couldn't see anything--not even Ferrin's salary.

Tempe's city attorney, Brad Woodford, also said releasing the records would violate the employee's right to privacy. It could affect Tempe's "ability to effectively and efficiently manage its employees," Woodford wrote.

Woodford tells New Times that the city depends on its employees to honestly evaluate their subordinates, and there are things managers won't say if they know other people will find out. The city attorney likens it to "being honest with your spouse--you're honest with them, but there's certainly things you wouldn't want out in public."

Besides, Woodford says, "It's impractical for the public to know what city employees are doing every minute of every day."

Woodford offered to allow the Tribune to see some basic information about Ferrin--including his hire date, salary and position.

Barr didn't buy it. He calls Woodford's rationale the "trains-running-on-time argument."

"When we're talking about a cop who's accused of police brutality, I don't think it's too much to ask what's in his personnel record," Barr says.

Up to this point, the back-and-forth was no different from the fencing almost any media organization goes through when trying to get sensitive public records.

Then the city sued.
Tempe asked the court to declare that the personnel files including "performance evaluations [and] disciplinary reports . . . are not 'public records' and are subject to the individual's constitutional right of privacy."

Even Barr says he was surprised by Tempe's action. "We're trying to work this out, and they turn around and sue us," he says.

Lawsuits that attempt to bar media outlets from getting public documents are extremely rare. In part, that's because it's almost always counterproductive to go out and sue the media if you want to keep something quiet, says Ben Bagdikian, a veteran journalist and author.

Fighting public-records requests in court draws more attention to the records, not less. And in most cases, the courts side with the press and the public, so the government agency ends up having to give up the documents anyway.

"The smart units of government release it right away, before they raise the question that they might be covering something up," Bagdikian says.

But if the lawsuit succeeds, there's a big payoff.
"That tells every other jurisdiction, if you have a public record, and the media wants to see it, all you have to do is send your attorney into court, and it's as if there's no public record," Bagdikian says.

Marlene Maerowitz, assistant city attorney for Tempe, says the city was just looking for guidance on the issue from a judge. The Trib was probably going to sue anyway, so Tempe got there first.

"I thought we did a good thing by saying we've reached a stalemate here," she says.

Barr filed a counterclaim against the city, asking the court to compel Tempe to turn over the records. Phoenix Newspapers Inc., parent company of the Arizona Republic, also joined in the action to request Ferrin's records and the files of two other Tempe employees involved in the case of the Tempe jail assault.

By the time Superior Court Judge Linda K. Scott heard the public-records case on August 27, it was down to one basic question: Was there any good reason for Tempe to keep the documents secret?

There is no exemption for city personnel files in the state's public-records law. To keep private records made on public time or with public resources, an agency has to prove that there's a chance of "specific, material harm," according to the law.

The city argued that Tempe's efficiency was a good enough reason to keep the records out of the public's hands.

Maerowitz told the judge that the records must remain private in order to have an "open, deliberative process" between the city's managers and their subordinates.

Barr told Scott that objection still doesn't meet the test.
"We have yet to hear any specifics of how the city will be harmed by releasing these documents," Barr replied. "Instead, we hear about this parade of horribles . . . the public and the media coming into their offices to request these records."

Judge Scott agreed. She ordered the city to turn over the documents on Ferrin.

"In a case where a legitimate issue is before the public, I think that's where the public's right to know outweighs [the employees' privacy]," Scott said.

However, Scott ruled against PNI on the records of the Tempe guard who witnessed the other jailer hit the prisoner. And she said the city did have a legitimate right to protect its employees' privacy.

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