Thrust and Parry

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Arizona state law requires public agencies--broadly defined as an entity that receives public money--to hand over its records unless a record is specifically exempted under the law. Any citizen is supposed to be able to walk into any government agency and look over its correspondence, ledgers or other records, no questions asked.

But in practice, agencies often refuse to turn over records. And the public-records statute is difficult to enforce. If an agency simply says, "No," the person making the request has no option other than to take the agency to court.

What made Tempe's refusal even more frustrating was the fact that the Phoenix and Mesa police departments routinely release the kind of details the Trib wanted.

Sergeant Mike Torres, public information officer for the Phoenix Police Department, can empathize with not wanting to give embarrassing information to the media. But he gives it out anyway, because that's what the law requires.

"There's times I wish we didn't have to release [disciplinary records], but we believe under state law that they're public documents," he says. "The public has a right to know that supervisors are taking care of business."

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.

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Chris Farnsworth