Thrust and Parry

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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.

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."

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Chris Farnsworth