The director of ASU Law’s First Amendment Clinic was interviewed about an arrest of a speaker at a Surprise city council meeting.
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.
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.
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), https://www.usnewsdeserts.com/states/arizona/. [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
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:
