First Amendment Clinic wins Supreme Court case, allowing journalists to qualify as researchers eligible to obtain ADES protection records.

The Arizona Supreme Court decided today that journalists can be engaged in the type of “bona fide research” that would allow them to see if a state health agency is protecting vulnerable adults under its care.

Students from the First Amendment Clinic represented journalist Amy Silverman, who has been researching whether the protective services division of the Arizona Department of Economic Security is adequately responding to abuse allegations. The records are confidential, but state law provides an exception for those engaged in “bona fide research” to obtain the records as long as all personally identifying information is redacted.

“This is an important win for our client and for all journalists,” said First Amendment Clinic Director Gregg Leslie. “Agencies are too quick to undervalue the work that investigative journalists do, and the Court has recognized that a statute that allows public access to information so agencies can be held accountable for their work also allows journalists to examine those agency actions.”

ADES said that journalists did not qualify for that exception, which should only apply to researchers who are assisting the agency. But the high court disagreed, pointing out that “interpreting the statute as categorically excluding journalists would raise serious freedom of speech and equal protection concerns.”

The case must now go back to the trial court to apply the new test and to consider other ADES objections to the scope of the request.

Agencies cannot deny access to databases just because keys are personal identifiers

State agencies cannot refuse to release database records because the IDs that connect the records are themselves health care “identifiers,” after the Arizona Supreme Court denied review of a lower court’s decision last week. Agencies must now create an encrypted version of the identifiers so the data is still useful.

In June of 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 by the First Amendment Clinic as counsel for journalist Amy Silverman and the Arizona Daily Star against the Arizona Heath Care Cost Containment System (AHCCCS). The agency had refused to provide such encryped keys in response to Silverman’s public records request to review public database records to see how the agency determines benefits eligibility.

“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.”

“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’s Sandra Day O’Connor College of Law. “Removing the keys that connect all the information in a database renders the data useless.”

AHCCCS had maintained that providing the encrypted keys was not required by the Arizona public records law because it would amount to the creation of a new record.

The Court of Appeals rejected this argument and held that “requiring the agency to use a one-way cryptographic hash function to redact the non-disclosable data – substituting a unique hashed value that masks protected information without destroying its function in the database – is necessary to ensure a requestor receives, to the extent possible, a copy of the real record.”

AHCCCS filed a petition for review of this ruling with the Arizona Supreme Court. On May 7th, the Supreme Court denied that review, leaving the Court of Appeals’ ruling as precedent for similar public records requests in the future. Silverman and the Daily Star filed the underlying special action complaint nearly three years ago in June of 2021, though Silverman’s initial public records request to AHCCCS was made over four years ago in February of 2020.

The Star and Silverman requested these records while reporting a year-long project, State of Denial, co-published with the non-profit 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.

Silverman and the Daily Star were represented throughout the legal process by the First Amendment Clinic at Arizona State University’s Sandra Day O’Connor College of Law.

Arizona Government and Social Media

Social media has had a profound impact on communications in the United States, transforming the way people connect, share information, and engage with one another. It has become an integral part of daily life for millions of Americans and in particular, various government actors and agencies. For example, social media provides a new platform for governments to engage with citizens, disseminate information, and gather public feedback. Due to the significance of social media in government-to-citizen communication, courts have concluded that social media is the new defining democratic forum. For instance, in Packingham v. North Carolina, the Court stated, “While in the past there may have been some difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general … and social media in particular.” This shift from traditional to modern communication modes has resulted in several challenges to First Amendment rights. Government actors have used social media to block constituents’ access to information.

Arizona Counties and Representatives Increasingly Use Social Media

Throughout the nation, there has been a shift in reliance on social media as a news source; however, Arizona is a particularly striking example of this dramatic shift and the associated risks.

Most of Arizona’s counties have social media pages where constituents can receive information about government activities. For example, Maricopa and Pima, Arizona’s two largest counties, interact with citizens through various platforms such as YouTube, Facebook, and Twitter. (See table 2 below). Smaller counties also use these platforms to communicate with the public; however, rural citizens more heavily rely on access to public officials’ social media accounts for news regarding governance, policy, and public services in the wake of the dwindling presence of traditional media. See generally Penelope Abernathy, Arizona, The Expanding News Desert, (2023), [J(1] [A(2] [J(3] Arizona’s local government officials have somewhere around two hundred and thirteen social media accounts between both chambers of the Arizona legislature, averaging roughly two accounts per representative or senator. Meanwhile, every member of Arizona’s delegation to Washington has at least three different social media accounts. (See table 1 below). The growing use of social media by government actors and agencies makes the curtailment of freedoms on these platforms more concerning.

Table 1: Arizona Politician’s Social Media Usage

House Legislator Party Social Media Accounts Account Average
Cesar Aguilar D 3  
Lorena Austin D 3  
Leo Biasiucci R 3  
Seth Blattman D 2  
Selina Bliss R 2  
Andrés Cano D 3  
Michael Carbone R 1  
Neal Carter R 1  
Joseph Chaplik R 3  
Lupe Contreras D 1  
Patricia Contreras D 2  
David L Cook R 2  
Quantá Crews D 2  
Oscar De Los Santos D 3  
Lupe Diaz R 2  
Timothy M Dunn R 2  
John Gillette R 2  
Travis Grantham R 3  
Matt Gress R 2  
Gail Griffin R 1  
Nancy Gutierrez D 3  
Justin Heap R 2  
Laurin Hendrix R 2  
Alma Hernandez D 3  
Consuelo Hernandez D 2  
Lydia Hernandez D 2  
Melody Hernandez D 3  
Rachel Jones R 2  
Alexander Kolodin R 3  
David Livingston R 2  
Jennifer L Longdon D 2  
David Marshall, Sr. R 4  
Teresa Martinez R 3  
Christopher Mathis D 3  
Cory McGarr R 2  
Steve Montenegro R 3  
Quang H Nguyen R 2  
Analise Ortiz D 3  
Barbara Parker R 0  
Jacqueline Parker R 3  
Jennifer Pawlik D 3  
Kevin Payne R 2  
Michele Peña R 1  
Mae Peshlakai D 1  
Beverly Pingerelli R 3  
Marcelino Quiñonez D 3  
Athena Salman D 3  
Mariana Sandoval D 3  
Judy Schwiebert D 3  
Keith Seaman D 2  
Amish Shah D 3  
Austin Smith R 3  
Stephanie Stahl Hamilton D 2  
Leezah Elsa Sun D 3  
Laura Terech D 3  
Ben Toma R 2  
Stacey Travers D 3  
Myron Tsosie D 3  
Julie Willoughby R 3  
Justin Wilmeth R 3  
Senate Legislator Party Social Media Accounts Account Average
Lela Alston D 2  
Ken Bennett R 3  
Sonny Borrelli R 3  
Flavio Bravo D 2  
Eva Burch D 3  
Frank Carroll R 2  
Eva Diaz D 2  
Denise “Mitzi” Epstein D 3  
David C. Farnsworth R 2  
Brian Fernandez D 1  
Rosanna Gabaldón D 3  
Sally Ann Gonzales D 3  
David Gowan R 2  
Theresa Hatathlie D 0  
Anna Hernandez D 3  
Jake Hoffman R 2  
John Kavanagh R 3  
Anthony Kern R 3  
Sine Kerr R 3  
Christine Marsh D 3  
Juan Mendez D 3  
J.D. Mesnard R 2  
Catherine Miranda D 3  
Warren Petersen R 2  
Wendy Rogers R 2  
Janae Shamp R 1  
Thomas “T.J.” Shope R 3  
Priya Sundareshan D 2  
Justine Wadsack R 3  
U.S. House Rep Party Social media accounts Account Average
David Schweikert R 3  
Eli Crane R 3  
Ruben Gallego D 3  
Greg Stanton D 3  
Andy Biggs R 3  
Juan Ciscomani R 3  
Raúl Grijalva D 3  
Debbie Lesko R 3  
Paul Gosar R 3  
U.S. Senator Party Social media accounts Account Average
Mark Kelly D 3  
Kyrsten Sinema I 3  

Table 2: Arizona Counties’ Social Media Usage

County Type of Social Media Link/Reference
Apache County Facebook Website Facebook
Cochise County Facebook/Instagram/Next-door Website Facebook  Instagram Nextdoor
Coconino County Facebook/Instagram/YouTube/Twitter Website Facebook Instagram Twitter YouTube
Gila County Facebook/YouTube Website Facebook YouTube
Graham County Facebook Website Facebook
Greenlee County N/A Website
La Paz County Facebook Website Facebook
Maricopa County Facebook/Instagram/YouTube/Twitter Website Facebook Instagram Twitter YouTube
Mohave County Facebook/YouTube/ Twitter Website Facebook Twitter YouTube
Navajo County Facebook/YouTube/ Twitter Website Facebook Twitter YouTube
Pima County Facebook/Instagram/YouTube/Twitter/ Pinterest/Flickr Website Facebook Instagram Twitter YouTube Pinterest Flickr
Pinal County Facebook/Instagram/YouTube/Twitter Website Facebook Instagram Twitter YouTube
Santa Cruz County Facebook/Twitter Website                                      Twitter Facebook
Yavapai County Facebook/Instagram/YouTube/Twitter Website Facebook Instagram Twitter YouTube
Yuma County N/A Website                                                                              

The Day My State Representative Blocked Me!

In Arizona, it is common for public officials to use social media’s blocking function to restrict access to information, suppress dissent, and create a false narrative in support of activities that would otherwise draw criticism. Representative Bob Thorpe of the Arizona House, for instance, blocked users, including news reporters, from his Twitter account in 2013 after receiving censure for a racially insensitive tweet. Jeremy Duda, Thorpe Erases Tweets, Locks Down Twitter Account Following Racism Accusations, AZCapitol Times, August 14, 2013. The tweet followed U.S. Attorney General Eric Holder’s announcement that the Department of Justice would not pursue mandatory minimum prison sentences for a large number of low-level, nonviolent drug offenders. Id.[J(4] [A(5] [J(6] [A(7]  Thorpe tweeted, “Why is Holder [U.S. Attorney General] now Soft on Crime? Perhaps: blacks=12%-13% US population, but make up 40/1% (2.1 million) of male inmates in jail or prison!” Id.

In early 2022, Joshua Gray, a politically engaged Arizonan and frequent Twitter user, was blocked from then Representative Anthony Kern’s[J(8] [A(9]  Twitter account. The block followed Mr. Gray’s critique of Senator Kern’s involvement in the January 6th Capitol attack.[J(10] [A(11]  The criticisms leveled against Senator Kern were not well received and, according to Gray, Senator Kern responded to Gray’s criticisms with a “snarky response[J(12] [A(13] [J(14] .” Id. Despite having negligible contact with Kern, Kern blocked Mr. Gray. Id. In 2022, Kern was elected as Mr. Gray’s state representative, much to his dismay. Id.

Senator Kern uses Twitter for various purposes, including discussing his political beliefs, expressing opinions on significant issues, and disseminating information about local, state, and federal affairs. Id. Twitter is not the only social media platform used by Senator Kern, but it is by far his preferred platform. Despite various attempts to contact Senator Kern regarding the block, Gray has not received a response from Kern. Id. Gray said, “I’ve written and called his office a bunch of times to see if he could unblock me, but I haven’t heard back.” Id. This block effectively prevents Gray from accessing Senator Kern’s governance and policy perspectives. Id. Gray indicated that since the block, he “ha[sn’t] had contact with him since.” Id.

Clinic wins two important cases on appeal

The First Amendment Clinic, acting on behalf of journalist Amy Silverman, has recently won two important cases at the Arizona Court of Appeals.

In Silverman v. AHCCCS, the court ruled that agencies have to release database information in a usable format, and cannot obscure the connecting keys between data tables as protected health-care information without making an encrypted substitute for the key, so that the data is still usable. The Arizona Health Care Cost Containment System (AHCCCS) has claimed that encrypting the keys would constitute the creation of a new record, which is not required under the public records law. The court held that “requiring the agency to use a one-way cryptographic hash function to redact the non-disclosable data — substituting a unique hashed value that masks protected information without destroying its function in the database — is necessary to ensure a requestor receives, to the extent possible, a copy of the real record.”

In Silverman v. DES, the court ruled last week that a journalist can qualify as a “bona fide researcher” for purposes of being allowed access to certain health-related files — although the files will still have to be heavily redacted to avoid identifying any individuals. The agency had said that journalists don’t qualify for that exemption from secrecy and denied Silverman access to the records completely, thus keeping her from examining how the Department of Economic Security (DES) handles complaints about incidents involving people with developmental disabilities. However, the agency may still be able to show that the request may be too burdensome, and it can still reject her request as long as it does not act “arbitrarily and capriciously” in doing so.

Big day for free speech at the U.S. Supreme Court

Two important decisions came down this morning at the U.S. Supreme Court that upheld the important protections for all web sites (including the big social media sites) from liability based on what people post on their sites. The court held in Twitter v. Taamneh that web sites can’t be guilty of “aiding and abetting” criminal activity just because their sites were used by terrorist organizations, and in Gonzalez v. Google that there was no reason to determine if YouTube could be responsible when its algorithm decides to “recommend” videos that terrorist groups might use to recruit members.

Both cases are controversial, but both are important wins. Of course, nobody likes the idea that terrorists can plot attacks on social media and can get their posts distributed based on “likes.” But a decision that would have held the sites liable for these activities would have simply made speech on the Internet unrealistic for anyone who cannot afford to parse through every post on their site and somehow know if the poster has bad intentions. Free speech does come with some costs, and that has long been acknowledged in the history of First Amendment jurisprudence. You don’t have to approve of a neo-Nazi march through Skokie, Ill., to recognize that the right to speak should not be regulated by the government.

It’s tempting to point out that these cases aren’t really about traditionally speech, but facilitating others’ speech, and they involve multi-billion-dollar companies like YouTube and Twitter. But speech cases have often concerned the interests of other speakers, like when people have tried to hold bookstores accountable for what was written in a book they sold. Even the seminal libel case of New York Times v. Sullivan involved not the speech of the newspaper, but of an advertiser who wanted to let the world know what was happening to protesters and reformers in the South during the civil rights struggle. And Section 230’s protections are essential to the “little guy” publishers, who could be devastated and run out of business by lawsuits over something they never really stated themselves. Overall, it was a very good day for speech at the high court.

AZ Republic: Gateway Pundit wins $175K settlement over election press pass

The Arizona Republic has reported that the controversial news website Gateway Pundit “will receive a $175,000 settlement from Maricopa County after a federal appeals court ruled that officials erred in barring a writer for the website from attending on-site election news conferences last year.”

Gregg Leslie, director of ASU College of Law’s First Amendment Clinic, had testified as an expert witness in the hearing at the U.S. District Court in this case that the reporter for the Gateway Pundit was acting as a journalist and deserved to be given credentials during November’s vote count.

AZ high court improves media access during pandemic

In response to a request from the First Amendment Clinic for greater access for the news media to courtroom hearings and trials during the pandemic, state Supreme Court Chief Justice Robert Brutinel revised the statewide policy to state that “judicial leadership should authorize admission of a media observer or a representative of a media pool to in-person proceedings to the extent possible.”

The previous policy had not mentioned the news media in the section about who could be allowed into a court proceeding, leaving telephonic access as the only option for reporters.

Brutinel responded to the clinic last week after the clinic had submitted written comments about concerns with media access. “During this health emergency, I meet frequently with the presiding judges from around the state and have discussed with them the importance of allowing media attendance whenever possible,” Brutinel wrote. “While I have verbally advised the presiding judges, additionally, I have revised the Health Emergency Administrative Order as reflected in the enclosed Order.”

See more coverage in the Arizona Daily Independent.

(Note: as of 11/25, the new policy is not yet available from the Supreme Court’s Administrative Orders page, which is currently being restored after an attack on the server.)

Supreme Court considers access to trials, juror names

Superior Court case: State v. Wilson, No. S0200-CR2017-00516 (Cochise Cty. Super. Ct.)

Supreme Court case: Morgan v. Dickerson, No. CV-20-0285-SA

Roger Wilson
Roger Wilson

The First Amendment Clinic has been watching how the pandemic affects access to justice, and particularly how the necessary restrictions on the process to accommodate distancing might interfere with an open and public trial. Now, these issues have suddenly ended up at the Supreme Court, after it granted our petition for expedited consideration of some limiting orders in a murder trial in Cochise County.

The Roger Wilson murder trial included an order from the judge excluding all media from the courtroom, reading the Supreme Court’s Administrative Order (which is encourages public and media access to the greatest extent possible) to not include the news media, or even a pool representative, as the “necessary persons” who can be in the courtroom. In addition, the judge said that all jurors would be identified only by numbers, with their names permanently kept from the public. We are appealing both parts of that order.

The Docket: