Clinic Cases

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.

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: