PHOENIX — So, is a reporter doing “bona fide research?’’
Maybe, according to a new ruling by the state Court of Appeals. And the three-judge panel sent the case back to a trial judge to answer that specific question.
Hanging in the balance in this specific case is the ability of reporters to get information to share with the public about the Department of Economic Security and how good a job — or not — it is doing in handling its statutory duty to investigate complaints of abuse and neglect against vulnerable adults.
That, in turn, could open the door for further reporting of the series by KJZZ and the Arizona Daily Star about physical and sexual abuse, as well as neglect, against people with intellectual and developmental disabilities can occur anywhere — and that often nothing is done about it.
But the ultimate outcome of the case could determine whether government agencies can use laws designed to protect the privacy of some individuals to create exceptions from broad state statutes that generally make government records a matter of public concern.
The case involves an investigation by the two media outlets of Adult Protective Services, a division of DES. That division, as part of its work, gathers relevant documents and creates reports documenting progress.
Appellate Judge Brian Furuya, writing for the court, acknowledged that Arizona law says government records are presumed public. He said, though, there is a specific carve-out here for Adult Protective Services “because of the sensitive nature of these records.’’
But Furuya also said there are exceptions to that, allowing disclosure for certain specific exceptions — including for “bona fide research.’’
Based on that, reporter Amy Silverman and the Arizona Daily Star sought records related to closed cases of investigations and materials that resulted in the quarterly reports for the agency.
DES refused access, even after the reporters agreed to let the agency redact names and addresses.
The Star and Silverman filed a lawsuit citing the research exception, arguing that the records would help write news articles to “inform the public on the effectiveness of DES’ services to citizens with disabilities.’’
Maricopa County Superior Court Judge Sally Duncan rejected the state’s motion to dismiss and, on her own ordered the agency to disclose the records. That led to this appeal.
Furuya cited the exception allowing DES to disclose confidential records about vulnerable adults to research “engaged in bona fide research if no personally identifiable information is made available.’’
Only thing is, the judge said, there is no actual definition in law or court decisions as to what qualifies as “bona fide research’’ sufficient to allow disclosure of the information.
The Star and Silverman argued that phrase should be construed broadly to apply to all who legitimately try to find answers to questions, including journalists who are pursuing leads for a news story.
Furuya said there are dictionary definitions that support that argument, saying research includes “studious inquiry or examination,’’ “the collecting of information about a particular subject,’’ or “careful or diligent search.’’
Conversely, he said Black’s Law Dictionary has a narrower definition, saying research is the “serious study of a subject with the purpose of acquiring more knowledge, discovering new facts, or testing new ideas.’’
Here, Furyua said that accepting the interpretation by the Star and Silverman would impose such minimal requirements to render the confidentiality provisions of the law “effectively meaningless.’’
“Under appellees’ construction, any person seeking information could be said to be conducting ‘research’ — and therefore qualify for the exception — so long as that person is not engaging in fraud or deception,’’ the appellate judge wrote.
“Under such an expansive reading, the mere act of requested disclosure of the protected documents might itself qualify as engaging in ‘bona fide research,’ rendering the records confidential only until someone asks for them,’’ Furuya continued. “Such as interpretation is an absurd result, inconsistent with the purpose of the confidentiality statute, which we must avoid.’’
But none of that, the judge says, automatically makes the request for the documents invalid. He said that research need not be only for academic purposes but also can be for “educational’’ purposes.
“For example, a journalist’s request may be eligible for the exception if their research serves a public purpose, such as informing the public of ways DES and APS could improve treatment and security of vulnerable adults,’’ he wrote. “Such goals could be said to further educational or administrative purposes.’’
But the appellate court said being able to claim that exemption requires more than simply saying someone is a journalist doing a story.
“Researchers must have a detailed plan that shows how the research will help DES improve its operations, show the purpose and expected outcomes of the research, and show how they will maintain record confidentiality,’’ Furuya said.
None of that, he said, requires the research to benefit DES.
“But we find it reasonable to require that researchers provide detailed descriptions outlining the specific information needed, the research’s purpose and expected outcomes, and how they will maintain the confidentiality of the records,’’ the judge said.
And that, said Furuya, requires further inquiry by the trial judge as the appellate court sent the case back to her.
“Silverman’s request may qualify for the bona fide research exception,’’ he wrote. But Furuya said there is simply just not enough information for the appellate court to decide.
With access to the records still in limbo, the investigative pieces were published and aired with the information available. But if more records become available, it opens the door to future reporting.
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