Steller: Tucson must disclose records, not defer to confidentiality deals

2014-05-21T00:00:00Z 2014-05-21T15:14:34Z Steller: Tucson must disclose records, not defer to confidentiality dealsTim Steller Arizona Daily Star Arizona Daily Star

A Pima County Superior Court judge has given the city of Tucson 27,800 reasons not to get entangled in confidentiality agreements and withholding public records.

That’s the amount in fees, $27,800, that Judge Christopher Staring has awarded attorney Bill Risner in his public-records suit against the city.

Staring found that the city engaged in “misconduct” by withholding documents that Risner’s client, Cecilia Cruz, requested from the city regarding its effort to recruit Grand Canyon University to build a campus at the El Rio Golf Course site. (Ruling is attached.)

“The record raises serious questions concerning the integrity of the COT’s (City of Tucson’s) response to Ms. Cruz’s May 2013 request,” Staring said in his Friday ruling.

When I talked with City Attorney Mike Rankin about the case in his City Hall office Tuesday, he said: “We dropped the ball. I’m not going to make an excuse for it.”

Yet another public-records case gives reason for concern that the city hasn’t learned its lesson about confidentiality and withholding of records. In March, the American Civil Liberties Union filed a lawsuit in Pima County on behalf of a Southern Arizona journalist attempting to get public records on a technology known as a “cell-site simulator,” which Tucson police have obtained.

The Harris Corp.’s Stingray device acts somewhat like a cell-phone tower, triggering phones in a given area to contact it, therefore allowing police to locate, track and otherwise collect data from phones in a given area, the ACLU’s lawsuit says. Tucson police own at least one of these devices, but when journalist Mohamad Ali “Beau” Hodai requested information about how it’s being used, they gave him very little.

The little he did get, though, included a shocking nondisclosure agreement between the city and Harris Corp. It obligates the city not to disclose information about the Stingray product, even when requested under public records law.

“In the event that the City receives a Public Records request from a third party relating to any Protected Product, or other information Harris deems confidential, the City will notify Harris of such a request and allow Harris to challenge any such request in court. The City will not take a position with respect to the release of such material, beyond its contractual duties, but will assist Harris in any such challenge.”

In other words, the city committed itself, through this agreement, to help Harris fight public-records requests that the company finds objectionable. And when it came time to respond to Hodai’s request, the city followed through. It redacted pricing information about Stingray-related products and withheld instructional information that is normally covered by Arizona’s broad public-records law.

The city defended its decision by citing the affidavit of a supervisory FBI agent who specializes in tracking technology. Agent Bradley S. Morrison‘s affidavit boils down to an argument that disclosing information would violate the federal Freedom of Information Act (never mind that state law governs this request) and “could result in the FBI’s inability to protect the public from terrorism and other criminal activity.”

Disclosing the information could even violate the Arms Control Export Act, Morrison alleges. His arguments might be convincing if we hadn’t heard the same sort of federal alarmism many times before. But the city is sticking with its defense of the redactions it made.

Nondisclosure agreements also were at issue in the Grand Canyon University case. Officials including City Manager Richard Miranda and Economic Initiatives Director Chris Kaselemis signed agreements not to disclose information shared by GCU as part of its exploration of a new campus.

“All Confidential Information disclosed under this Agreement shall remain the exclusive property of the Disclosing Party,” says Miranda's agreement (attached).

“I don’t look at that as binding on the city in terms of a public-records request,” Rankin told me Tuesday.

He shouldn’t, since such planks run head on into Arizona’s sweeping public records law, which says: “Public records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.”

Yet, in Beau Hodai’s case on the Stingray surveillance device, the city is defending a nondisclosure agreement by deferring to a private corporation and the FBI as to what’s disclosable.

Staring’s slap down suggests they should defer only to state law and its sensible bias in favor of disclosure.

Contact columnist Tim Steller at tsteller@azstarnet.com or 807-7789. On Twitter: @senyorreporter

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