Constructive Denial

The agency has failed to provide any response to a request.

The failure of this agency to respond to this public records request is in violation of this agency’s responsibilities under the Arizona Public Records Law. As outlined in A.R.S. §39-121.01, there exists an expectation that the records custodian “shall promptly furnish such copies, printouts or photographs.”

In the case W. Valley View, Inc. v. Maricopa County Sheriff’s Office, 216 Ariz. 225, the court relied on the Webster’s New World Dictionary for an acceptable definition of “prompt,” which, for the purposes of this law, means “quick to act or to do what is required” or “done, spoken, etc. at once or without delay.”

It is the responsibility of the agency to prove that its attempt to respond to this request was indeed “prompt.” This position has been supported in court (see Phoenix New Times v. Arpaio, 217 Ariz. 533 and Judicial Watch, Inc. v. City of Phoenix, 228 Ariz. 393). In instances in which technological or other practical matters prevent the “prompt” disclosure of materials, it is the responsibility of the agency to provide an explanation of the reasons for the delay and an expectation for when the request might be fulfilled.

This agency’s complete failure to either acknowledge this request, provide an explanation for the delay, or provide an index of withheld materials and the related reasons constitutes a denial of this request under the Arizona Public Records Law. As such, this request is eligible for contest in the Arizona Supreme Court system and will appropriately qualify for the award of attorney’s fees upon the anticipated determination that this agency has failed to fulfill its legal obligations under the state’s Public Records Law.

In light of the above, it would be greatly appreciated if your agency would fulfill its duty to the citizens of this state and the principles of this country by complying with the aforementioned request for public records as its legal responsibility.