Arizona Board of Regents v. Phoenix Newspapers, Inc.

806 P.2d 348, 167 Ariz. 254, 78 Ariz. Adv. Rep. 10, 19 Media L. Rep. (BNA) 1494, 1991 Ariz. LEXIS 7

• Court: Arizona Supreme Court
• Decided: January 10, 1991
• Docket: CV-90-0364-T/AP
• Status: Published

Opinions

OPINION

CAMERON, Justice.

I. JURISDICTION

The Arizona Board of Regents (Board) appealed the superior court decision requiring the Board to make public the names and resumes of all persons in the prospect pool for appointment to the presidency of Arizona State University (ASU). Defendant Phoenix Newspapers, Inc. (Newspapers) filed a cross-appeal from the trial court’s decision limiting the award of attorneys’ fees to $35,000. The matter was transferred from the court of appeals to this court. See Rule 19(f), Ariz.R.Civil App.Prac., 17B A.R.S. We have jurisdiction pursuant to Ariz. Const, art. 6, § 5(3).

II. QUESTIONS PRESENTED

1. Did the trial court err in holding that the Board must disclose the names and resumes of 256 prospective applicants, candidates, and nominees for appointment to the presidency of ASU?

2. Did the trial court err in holding that the names and resumes of the seventeen candidates must be disclosed?

3. Did the trial court err in awarding attorneys’ fees to Phoenix Newspapers?

III. FACTS

In October 1988, responding to then ASU President J. Russell Nelson’s announcement of his intention to resign at the end of the 1988-89 academic year, Herman Chañen, then president of the Board, announced the formation of an ASU Presidential Search Committee (Committee). This Committee included various constituencies of ASU, three members of the Board, and Molly Broad, the Board’s Executive Director. The Committee hired the executive search firm of Heidrick and Struggles, Inc. (HSI) to assist in identifying and evaluating candidates.

The Board and HSI concluded that confidentiality was critical in attracting and recruiting the most highly qualified prospects for the ASU presidency. William J. Bowen, Vice President of HSI, advised the Board that publishing the names of prospects in a university presidential search reduces the number of applicants by one-fourth, in effect skimming the cream off the pool of prospects. The Board’s practice in previous presidential searches had been to keep the names confidential. In one of those searches, two of six finalists withdrew their names from consideration after their names were leaked to the press and published. Bowen strongly urged, and the Committee pledged to preserve, confidentiality.

HSI and the Committee carefully considered approximately 250 persons during the search process. Of those, fifty-nine people actually applied for the position. The others were nominated or suggested by other persons. Many of those nominated or suggested were unaware they were being considered, nor had they consented to being considered. None of the fifty-nine persons who actually applied made the final seventeen.

Bowen did not promise confidentiality in the letters HSI sent to the final seventeen candidates. Although fifteen of the seventeen candidates received oral assurances of the Board’s best efforts to preserve confidentiality during the search process, neither the Board nor the Committee ever gave written assurance of confidentiality to any of the presidential candidates.

During the search process, the press and public learned the identity of the candidates, directly and indirectly. Committee members revealed some candidates’ names and the remainder were discovered through other sources. Committee members interviewed each of the seventeen candidates in Arizona, his or her home state, or neutral locations.

In a letter dated 11 November 1988, Mary Jo Pitzl of the Arizona Republic asked to inspect the resumes of the people being considered for the ASU presidency. Later that month, Eileen Myers of the Mesa Tribune made a similar request. Both requested access to the information pursuant to A.R.S. §§ 39-121 to -121.03, Arizona’s public records law.

After an initial meeting with representatives of the Newspapers and the Board in January 1989, the Newspapers’ counsel served a second public records request that narrowed the scope of the requested records to the resumes of the “top 20 to 30” candidates and the finalists. In making this request, the Newspapers apparently did not forfeit their request for all the names.

On 28 February 1989, representatives of the Board and the Newspapers again met to discuss the pending public records request. At that meeting, the Board agreed to release the names of any finalists, as well as demographic information, excluding names, about the prospect pool as the search progressed. By late February or early March 1989, all candidate resumes were available to the Board for inspection at its office, but the Board refused access to the Newspapers. The Board agreed, however, to give the Newspapers meaningful access to the finalists’ resumes. The extent of the agreement was disputed at trial.

On 24 April 1989, the Committee agreed to recommend three persons for the Board’s consideration. Dr. Lattie Coor, Dr. Gordon Gee, and Dr. Charles Kiesler were contacted and agreed to go public as the finalists. Dr. Gee withdrew in early May and Dr. Kiesler withdrew just before the 25 May 1989 Board meeting. After declining an opportunity to reopen the final list, the Committee presented the list of the three finalists at the Board’s 25 May 1989 public meeting.

On the same day, the Newspapers made another public records request, this time seeking the names and resumes of the seventeen persons who had been interviewed. The Newspapers included with their request a statement of intent to file a special action if the resumes were not produced the next afternoon.

After further negotiation, the Board, on 30 May 1989, provided the Newspapers with the complete resumes of Drs. Coor, Gee, and Kiesler, and edited versions of the other fourteen resumes. Using these resumes, the Newspapers eventually identified all seventeen people interviewed. The Republic published their names and background information on 30 June 1989. As of the date of the briefs, the Board had not provided the resumes of all 256¹ prospects or the complete resumes of the fourteen interviewees.

On 30 May 1989, the same day the Board produced the three complete and fourteen edited resumes to the Newspapers, the Board filed a complaint for declaratory judgment, seeking a determination that it had properly exercised its discretion under the public records law in releasing the edited resumes, or, in the alternative, that the Newspapers had agreed not to press for the names and resumes of persons not selected as finalists. The Newspapers answered and counterclaimed for special action relief pursuant to A.R.S. § 39-121.02, claiming the Board’s refusal to disclose the resumes of presidential candidates violated the public records law. The Newspapers also sought the unedited resumes and asked for their costs and attorneys fees, as provided for in A.R.S. § 39-121.02(B).

During the trial, the Newspapers moved to amend their answer and counterclaim to seek production of the resumes of all 256 persons considered. The court granted the Newspapers’ motion to amend their pleadings to allege that the Board had violated the public records law in withholding the entire group of 256 prospect resumes. On 21 June 1990, the court entered a formal judgment ordering that the 256 names and resumes, as well as the final seventeen names, be disclosed. The judgment awarded the Newspapers $35,000 for costs and attorneys fees.

The Board and the Newspapers timely appealed. As noted above, we ordered the matter transferred to this court because it is a matter of statewide importance concerning an important question of law.

- IV. SCOPE OF REVIEW

In reviewing findings of fact and conclusions of law, we must recognize a trial court’s findings of fact unless they are clearly erroneous. Rule 52(a), Ariz.R. Civ.P., 16 A.R.S.; Park Central Develop. Co. v. Roberts Dry Goods, Inc., 11 Ariz. App. 58, 461 P.2d 702 (1969). The “unless clearly erroneous doctrine,” however, applies only to appellate review of findings of fact. The doctrine “does not apply to the trial court’s conclusions of law nor does it apply to findings of fact that are induced by an erroneous view of the law nor to findings that combine both fact and law when there is an error as to law.” Id. at 60, 461 P.2d at 704.

We are not here concerned, however, with the trial court’s findings of fact. The trial judge’s findings were not clearly erroneous. Our concern is the trial judge’s conclusions of law based upon her findings of fact. We are not bound by the trial court's conclusions of law and are free to draw our own conclusions of law from the facts found by the trial court. Gary Outdoor v. Sun Lodge, 133 Ariz. 240, 650 P.2d 1222 (1982); Lane v. Bisceglia, 15 Ariz. App. 269, 488 P.2d 474 (1971). The findings of fact and conclusions of law are found in appendix A following this opinion.

V. THE 256 PROSPECTS

Arizona’s public records statute reads:

Public records and other matters in the office of any officer at all times during office hours shall be open to inspection by any person.

A.R.S. § 39-121. This statute was adopted in 1901 and is taken from the California provision, Chapter 610, Cal.Sess.L. 1874, § 27. Although this statute has been interpreted to favor disclosure, this policy is not absolute. As we have noted:

While access and disclosure is the strong policy of the law, the law also recognizes that an unlimited right of inspection might lead to substantial and irreparable private or public harm; thus, where the countervailing interests of confidentiality, privacy or the best interests of the state should be appropriately invoked to prevent inspection, we hold that the officer or custodian may refuse inspection. Such discretionary refusal is subject to judicial scrutiny.

Carlson v. Pima County, 141 Ariz. 487, 491, 687 P.2d 1242, 1246 (1984) (citation omitted). We believe that the Board had the discretion to balance the countervailing interests in this case. Id.; see also Mathews v. Pyle, 75 Ariz. 76, 251 P.2d 893 (1952). When the release of information would have an important and harmful effect on the duties of the officials or agency in question, there is discretion not to release the requested documents. Church of Scientology v. City of Phoenix, 122 Ariz. 338, 594 P.2d 1034 (Ct.App.1979). The record indicates that, as to some well-qualified candidates, confidentiality was critical in their decision to be interviewed.

The trial judge held that the 256 prospects and their resumes should be revealed to the media. We disagree. The 256 individuals were not yet candidates, but prospects. A prospect is a person in the initial large group that the Committee and HSI considers. A candidate is one who is seriously being considered, and is interviewed, for the position. The prospect may not know that he or she has been nominated, may not wish to be, and may find it embarrassing and harmful to his or her career. A candidate, on the other hand, may actively seek the office. Finalists are those persons actually submitted to the Board for selection.

In some cases the publicity attendant to the search has proven detrimental to the search process, resulting in lesser qualified, but thicker skinned, persons applying. The public’s interest in ensuring the state’s ability to secure the most qualified candidates for the university president’s position is more compelling than its interest in, or need to know, the names of all of the prospects. See Core v. U.S. Postal Service, 730 F.2d 946 (4th Cir.1984) (Federal Freedom of Information Act did not require disclosure of unsuccessful applicants). We believe the Board may balance the interest of ASU and the people of Arizona in selecting the best possible president, with the public’s right to knowledge of the selection process and the names of persons seriously considered for the position.

Revealing the names of all prospects, those nominated without their permission, and even those nominated with the prospects’ tacit permission, could chill the attraction of the best possible candidates for the position. The interests of ASU and the citizens of this state are best served by not discouraging the “cream” from applying. The “countervailing interests of confidentiality, privacy [and] the best interest of the state [were, therefore,] appropriately invoked to prevent inspection____” Carlson, 141 Ariz. at 491, 687 P.2d at 1246. We therefore reverse the trial court’s decision requiring the disclosure of all 256 names.²

VI. THE FINAL SEVENTEEN

Candidates are prospects who are seriously considered, and who are interviewed for the job. As is the case in many hiring efforts, be it university president, football coach, or chief executive officer of a large business, those interested will already know who is being considered for the job. This, and the fact that the final candidates have an express desire for the job, should militate against maintaining confidentiality. Candidates who actively seek a job run the risk of their desire becoming public knowledge. Because they are candidates, they must expect that the public will, and should, know they are being considered. The public’s legitimate interest in knowing which candidates are being considered for the job therefore outweighs the “countervailing interests of confidentiality, privacy [and] the best interests of the state____” Id. Therefore, it was not error for the trial court to order the release of the final seventeen names.

VII. ATTORNEYS FEES AND COSTS

The Newspapers asked for attorneys fees and costs pursuant to ArR.S. § 39-121.02(B), which provides in pertinent part:

B. If the court determines that a person was wrongfully denied access to or the right to copy a public record and if the court finds that the custodian of such public record acted in bad faith, or in an arbitrary or capricious manner, the superior court may award to the petitioner legal costs, including reasonable attorney fees, as determined by the court.

The Newspapers’ counsel contends that the “arbitrary and capricious” refusal to disclose the entire list of 256 names, as well as the final seventeen names, is bad faith. We do not agree. The evidence shows that the Board could reasonably have concluded that the welfare of the university required that the list of names be held in confidence. “Where there is room for two opinions, the action is not arbitrary or capricious if exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached.” Tucson Public Schools, Dist. No. 1 v. Green, 17 Ariz.App. 91, 94, 495 P.2d 861, 864 (1972).

The most that can be said here is that reasonable people might differ. We find no arbitrary or capricious conduct or bad faith on the Board’s part. The Newspapers are not entitled to attorneys’ fees.

VIII. CONCLUSION

We reverse the trial court’s holding that the Board must disclose the names and resumes of all 256 prospects; the trial court’s award of attorneys fees is similarly reversed. We affirm the trial court’s holding that the names of the seventeen candidates must be disclosed.

We note that it might be helpful to the court, the Board, and candidates, if the Board adopted rules of procedure for nominating university presidents. The adoption of rules could avoid a recurrence of future litigation. These rules could indicate when a prospect becomes a candidate and when confidentiality ends.

GORDON, C.J., MOELLER, J., and LLOYD FERNANDEZ, J., Court of Appeals, concur. FELDMAN, V.C.J., did not sit on this matter. Pursuant to Ariz. Const, art. 6, § 3, LLOYD FERNANDEZ, Judge, Court of Appeals, Division Two, was assigned to sit in his stead.

1 . We note that throughout the record these numbers range from 236 to 256. We will assume the correct number is 256.

2 . We note that the 256 letters, nominations, requests, etc., are not public records as defined by the statute. They may, however, be "other matters” within the scope of the statute. Matthews v. Pyle, 75 Ariz. 76, 79, 251 P.2d 893, 896 (1952).