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

She also ruled against Barr's request for attorney's fees, saying Tempe hadn't done anything "arbitrary or capricious."

"I don't fault the city for going to court first," Scott said. "They didn't stonewall."

Tempe sees the judge's decision as a victory, despite having to turn over the records.

"The judge reaffirmed that personnel records are sometimes private," Maerowitz says. "We lost this one little battle, but I think overall, we won the war."

Barr scoffs at that. "That's like the Whitehall Cruise Lines saying, 'We're glad the Titanic sank, we don't have to deal with the expense anymore.'"

Trib Managing Editor Jim Ripley says that when he brought up the lawsuit with Tempe Mayor Neil Giuliano, the mayor "basically shrugged his shoulders and said it's up to the law department."

The mayor and the city council are still just shrugging off the suit, even after the decision.

Giuliano says the city is pleased with the judge's ruling even though he believes it will cause problems for the city.

However, like the city's attorneys, Giuliano is hard-pressed to come up with a specific instance where Tempe's government will suffer if forced to release personnel records.

"Gosh, I don't know," he finally says. "I can't think of anything."
Despite that, the mayor and the city attorney now say that the city won't put employee evaluations down in writing anymore.

"We'll probably change the way we do employee evaluations," Woodford says. "We certainly can't do this out in public."

"There's going to be change in the way city business is conducted," Giuliano says.

The mayor cites Tempe's e-mail as an example of a way Tempe already tries to avoid public disclosure. The media pick up copies of the council's e-mail every week, so the council doesn't use it for any sensitive information.

"Obviously, if I'm working on something I don't want people to know about or worry about, I'm not going to put it in there," Giuliano says.

Tempe's attorneys now say they'll only release personnel records in the same circumstances as this case--that is, when an employee is accused of a crime and there is a great deal of public interest because of coverage in the media.

Using that narrow a set of criteria may land the city back in court, Barr warns.

"If they really believe that, then they don't understand how the legal system works," he says. "This was a specific case, with specific facts and a specific outcome. If they want broad-based rules, they go to the Legislature."

Still, Giuliano doesn't think many Tempe citizens will care if some city information stays secret. "There are certainly things that I don't know about the federal government," he says, by way of analogy. "There are protections that have to go both ways on this. I don't think the City of Tempe's action overwhelmingly makes the public uncomfortable. I haven't had a single phone call on this."

Other members of the city council aren't concerned, either. Councilman Dennis Cahill didn't know the city had sued the Trib and KPNX. Councilman Hugh Hallman was recently elected on a platform that included more openness in city government, but says he isn't distressed by the city's actions in this case.

"People say a lot of things," he says about the mayor and city attorney's warning that the city will keep more information off the record. "There may be a general policy to be more careful about what goes into employees' personnel files, but I don't see a huge chilling effect [from that]."

While city officials are blase about the suit and its implications, the Tribune's Ripley finds Tempe's reasoning "frightening."

"First of all," he says, "it's not about the newspaper. It's about the public's right to know. . . . For any system of democratic government to work, the public has to be able to find out about individual instances of wrongdoing and what was done in those instances. . . .

"Frankly, Tempe's position is unconscionable; they're saying, 'We have a right to secrecy when it comes to any potential wrongdoing by our employees.'"

Tempe's lawsuit is "symptomatic of the view of many officials that obeying the public-records law is not part of their job," says Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, a Virginia-based media-rights group. "I don't know how you get around it except for attorney generals and legislators saying, 'Yes, it is so part of your job."

"In a lot of cases, they develop an 'us and them' mentality," Kirtley says. "They think, 'The public won't understand it, the press won't explain it well enough, it will make us look bad, it will be embarrassing,' and so they don't release the information. It's very rare to find a longtime public official who thinks differently."

Ferrin's records turned out to contain nothing worth fighting over.
There is no indication of any serious problems, no past incidents of brutality.

Ferrin's only black marks have come from lying to a superior officer about a court date he missed while on vacation. He also allowed a prisoner to escape. And, on several occasions, he was rude to people he'd stopped for traffic violations.

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