Thursday, October 20, 2016
To: Thomas Weaver
Chief Civil Deputy County Attorney
From: C.H. Huckelberry
Re: Continued Burdensome Records Requests by Supervisor Ally Miller
Supervisor Ally Miller has renewed her expansive and onerous requests for public records from me and other members of my staff. While her previous July 13, 2016 requests for records were equally expansive, they at least carried the pretense, stated repeatedly by her on various social media accounts, that she was seeking evidence that my office, the other four supervisors and the County Communications Office conspired with the local media to have them write stories about her mishandling of her employee’s attempt to masquerade as a journalist. She also sought proof we subsequently conspired with the media to have them report her apparent four-year effort to illegally cloak the business of her office in secrecy via the use of personal email and encrypted computer files and portable data storage devices.
Supervisor Miler’s records requests of September 22, 2016 are virtually identical to the requests of July 13, but without the pretense. The media have mostly moved on from the Timothy DesJarlais scandal, and her gross violations of State public records laws are being investigated by the Arizona Attorney General’s Office. Yet Supervisor Miller continues her expansive and onerous requests of my office, Chair Bronson’s office and the Communications Office; attempting to discover any mention of the DesJarlais scandal – as well as obtain every email sent or received by any of my staff, the Communications Office, and Chair Bronson and her staff – as well as a host of other electronic communications and internet browser data. Lacking the DesJarlais scandal pretense, one can only conclude the sole purpose of this latest series of requests is harassment.
I believed Supervisor Miller’s July 13 requests were likewise overly broad and should be denied in part, but I deferred to your counsel to comply in full. I am now requesting that for this second set of requests, you take another look at the scope of these requests and whether Arizona case law allows for the County to deny these requests in full or in part under the “best interests” balancing test.
As you may be aware, the state Legislature in its last two sessions sought to pass a law restricting records requests that were “unduly burdensome or harassing.” The bill put forward this year passed the Senate but failed in the House, primarily over arguments that existing case law allows such requests to be denied in the best interests of the State. The Office of the Arizona Ombudsman, in its July 2016 bulletin, addressed the failure of SB1282, noting that, “…Arizona courts recognize unduly burdensome requests as a viable defense when the public body can specifically demonstrate how compliance would be detrimental to the best interests of the state. The courts look at the following criteria: 1) the resources and time it will take to locate, compile, and redact the requested materials; 2) the volume of materials requested; and 3) the extent to which compliance with the request will disrupt the agency’s ability to perform its core functions.”
Supervisor Miller’s latest request for records meets all three of these criteria. The Clerk of the Board continues to wade through more than 100,000 emails and tens of thousands of other records requested by the Supervisor on July 13. This latest request adds tens of thousands more records to that effort. The staff named in Supervisor Miller’s requests have all spent many hours compiling records for the Clerk of the Board; the already overburdened and understaffed Information Technology Department has had to divert numerous staff from existing, important County technology projects to compile the information requested from the Supervisor; and hundreds of Clerk of the Board staff hours have been consumed compiling, sorting, tracking, reading and redacting all of these records. No evidence of any conspiracy against Supervisor Miller has been found.
The scope of these requests has had a chilling effect on County administration and governance. If these records requests persist, Supervisors will have to stop communicating with their staffs and advisors via electronic communication media. Likewise, County Administration staff subject to these requests have become more circumspect in their communications with one another. Forcing Supervisors and County staff from using these ubiquitous electronic communication tools only serves to slow the speed of County governance and public services. County staff should be able to conduct the County’s business without Supervisor Miller looking over their shoulders reviewing every email, text message and voice mail searching for nonexistent conspiracies.
If Supervisor Miller is looking for something specific, she should ask for it. These latest requests are at best fishing expeditions and at worst harassment; and regardless of which, I believe they should be narrowed to represent a reasonable and typical public records request that we routinely respond to without hesitancy.
However, if in your review of these latest requests you advise that the County should comply with them in full, I ask that you also consider the legality of transferring the responsibility for redaction to Supervisor Miller. Rather than continue to burden the Clerk of the Board, the entire mass of records should be provided to Supervisor Miller to review herself. Since Supervisor Miller made these records request in her official capacity, if she then wants to release the information to the public, she should follow the State’s public records laws, as well as be responsible for redaction of the records. Such will allow the Clerk of the Board to resume its normal functions and cease being Supervisor Miller’s records redaction staff, which it has become since her July requests.
I would be happy to have our Information Technology Department routinely transfer my email records to Supervisor Miller if she would take full responsibility for redacting those communications in accordance with Arizona law.