May 16, 2024

ASU Law helps set legal precedent in public records law

The First Amendment Clinic at the Sandra Day O’Connor College of Law at Arizona State University led an effort that has changed the way public records requests are made in Arizona. State agencies cannot refuse to release database records because the IDs that connect the records are themselves health care [KK1] [LW2] “identifiers,” after the Arizona Supreme Court denied review of a lower court’s decision this week.

“This is an important win for the public and for journalists, since most records are kept in databases,” said Gregg Leslie, a professor of practice and the director of the First Amendment Clinic at ASU Law. “Removing the keys that connect all the information in a database renders the data useless.”

In June 2023, the Arizona Court of Appeals ruled in Silverman v. AHCCCS that state agencies must release database information in a usable format to those requesting public records. Specifically, agencies cannot obscure the connecting keys between data tables (as protected health care information) without making an encrypted substitute for the key.

That appeal arose from a special action filed on behalf of journalist Amy Silverman and the Arizona Daily Star against the Arizona Heath Care Cost Containment System (AHCCCS) for its refusal to provide such encrypted keys in response to Silverman’s public records request to review public database records to see how the agency decides benefits eligibility. AHCCCS had maintained that providing the encrypted keys was not required by Arizona public records law because it would amount to the creation of a new record, which the Court of Appeals rejected. AHCCS filed a petition for review with the Arizona Supreme Court, which was denied on May 7 and setting a new precedent for public records requests in Arizona. 

Silverman and the Daily Star were represented throughout the legal process by the First Amendment Clinic.

“This is a huge victory for journalists across the state and for the public,” said David McCumber, executive editor of The Arizona Daily Star. “It would not have happened but for Amy Silverman’s dogged reporting and the great work of the First Amendment Clinic. All of us at Arizona Daily Star are thrilled with the result.”

The Star and Silverman requested these records while reporting a year-long project, State of Denial, co-published with the nonprofit investigative newsroom ProPublica as part of their Local Reporting Network. Silverman wanted to examine rejection rates for people with intellectual and developmental disabilities applying for long term care through AHCCCS, the state's Medicaid agency. The database information was an essential element in her reporting.

State of Denial went on to win a President's Award from Lee Enterprises and was a finalist for several national reporting awards. Silverman was named 2020's Virg Hill Journalist of the Year by the Arizona Press Club for her work on the project.

Written by Lindsay Walker