The ongoing saga of Edward Snowden and his legal troubles in the wake of his disclosure of classified information has generated lively discussion about the role of government surveillance in creating security for our society.  Many people are debating whether or not the government should be keeping secrets about its surveillance activities.  I recently heard an interview on the radio in which the guest explained that, in his opinion, secret security systems were ineffective, because they are not improved by being subjected to scrutiny and constant testing.  While this may be a valid point for computer firewalls and the like, I think this misunderstands the justification for government secrecy in some programs.

The purpose of keeping information from general dissemination is -- or at least should be -- to prevent the information from benefiting those who would do harm to society.  For example, if the police are aware that organized criminals are using a particular location to discuss their murder plans, and they can plant a listening device in that location, allowing the general public to know about the device will defeat its purpose.  The criminals will simply find another, more private, location to hatch their plan.  In situations such as this, secrecy is key.  Secrecy is a problem, on the other hand, when it is used to prevent the public from uncovering illegal activity.  Unfortunately, many people assume that information is kept secret for the latter reason, when in actuality it is for the former.

Please keep this in mind when seeking information from the government.  For the most part, the people working in these areas are genuinely motivated by a desire to help their fellow citizens, by stopping those who would seek to harm us.  This includes most police officers and intelligence professionals.  They generally have no interest in your personal discussions about what to make for dinner, and would rather focus on discussions about criminal activity.  If you request documents about a particular government program and are denied because the information is classified, do not assume that the program is targeting you.

The short answer: Because it doesn't exist.  As noted in the last post, a public record in Arizona is any record that can help the public keep track of the activities of a public agency.  This means that the record must contain the kind of information that helps the public agency perform its mission or transact its business.  If a particular document would not be of any use to the agency, then the document is not required to be created or kept.  Nothing in Arizona's public records law requires that a public agency create a particular record simply because a person has asked for it, even if the contents of that record would be information collected from other public records.  Thus, unless a public agency has some need for a list of public union membership dues withholdings, it does not have to create one just to satisfy a public record request.

Public records, especially those held by law enforcement agencies, are subject to many rules, some of which directly contradict each other.  While the basic rule in Arizona (and most other states with strong public records laws) is that any record held by a public agency is open for inspection by the public, there are some important limits on this rule.  Some are imposed by federal statutes and regulations, some by state statutes and regulations, and some by case law.

As an initial matter, it is important to note that the federal Freedom of Information Act (FOIA) does not apply to state public records.  If you want a police report from your local police department, do not invoke FOIA.  They may give you the report anyway (because the state public records law says they should), but they may deny your request because you cited the wrong statute.

While Arizona's public records law generally gives the public access to any public record, it allows certain information to be withheld or redacted to protect those vulnerable to attack.  Identification and contact information for a crime victim cannot be disclosed.  The home address and home telephone number of certain individuals involved in law enforcement (which can include not just police officers, but also prosecutors, and people who work in this area) is confidential.  Photographs of police officers may only be released in certain circumstances.  Federal risk assessments of infrastructure (such as telecommunications or utilities) are exempt from disclosure.

Information may be withheld for certain important purposes.  For example, the location of an important archaeological find may be withheld to protect the site from vandalism or damage.  If the custodian of a record believes that a record that is requested for commercial purposes (such as to compile a mailing list for business solicitations) will be abused, the custodian may seek an order from the governor preventing the record from being released.  Adoption, severance, and dependency records held by the juvenile court are exempt.

Some information that is considered private and confidential is exempt from disclosure.  For example, some information contained in a public employee's personnel file, such as Social Security numbers and medical information, is protected (but not completely prohibited) from disclosure by federal law.  Disciplinary actions, however, are not confidential, and are required to be disclosed.

Finally, Arizona courts have found that certain records may be withheld if the agency believes that "the interests of privacy, confidentiality, or the best interest of the state in carrying out its legitimate activities outweigh the general policy of open access."  This exception is usually invoked to protect the details of an ongoing police investigation, the identity of a confidential informant, or some other particularly sensitive information.  It is not meant to be a catch-all, however, nor does it give the agency discretion to pick and choose what information it wants to release.  The agency must be able to justify its withholding of information under this exception.  If you don't get the police report you ask for, though, this is probably the reason.

Intergovernmental agreements (IGAs) and memoranda of understanding (MOUs) are both contracts.  Basically, a contract is an agreement between two or more people or entities to do something.  While there are special names for various kinds of contracts (such as licenses and bailments), they all have this same basic feature in common.  While IGAs and MOUs commonly appear in a government setting, they really are not particularly different from any other contract.

An IGA is simply a contract between two or more governmental entities who have some sort of common authority.  A typical example of an IGA in my practice is a mutual aid agreement between two fire districts.  This requires each party to the IGA to provide help to one of the fire districts when it encounters an emergency that is too big for it to handle alone.  Because all of the parties are fire districts, and thus authorized to respond to emergencies, they are allowed to enter into an agreement for a joint emergency response.  The only meaningful difference between an IGA and any other contract is that it must be between government agencies that have some power in common.  In Arizona, IGAs are governed by Arizona Revised Statutes section 11-952.

MOUs are commonly considered to be less formal than a "full" contract, but in practice they are just as enforceable as any other contract, and will be held to the same legal standards.  MOUs are commonly encountered between a government agency and a private, non-profit organization such as a workers' union.  They usually have few terms, and may not be expected to have any legal enforcement mechanism -- often, they are intended to be little more than an expression of common goals, without any specific action required.  Despite this intention, many MOUs run more than ten pages and contain such elaborate terms that even seasoned attorneys can become confused.  For this reason, I (and other government attorneys I know) prefer to avoid the term "MOU," because it can give the parties the expectation that the agreement isn't really a contract, when it actually is.

Some of Sheriff Joe Arpaio's supporters have filed a lawsuit against the campaign seeking to recall the Sheriff.  Some of his supporters also have claimed that the recall effort is "an unconstitutional attempt to harass him."  This couldn't be less true.

Arguments like this are, unfortunately, far too common.  When someone doesn't like what another person or group is doing, he or she often claims that the behavior is "unconstitutional."  First, the U.S. Constitution applies only to government activity (with the exception of the 13th Amendment's prohibition of slavery), so the efforts of a group of private individuals cannot be unconstitutional.

Second, the recall is proceeding according to state statutes setting out the procedures for a recall election.  Whenever there is a procedure such as this, it generally constitutes what is called "due process of law."  (In this case, it would be specified as "procedural due process.")  Such procedures are constitutional unless they have absolutely no reasonable basis.  Here, Arizona's recall statutes are fair and evenly applied.  There is no reason to claim that they are unconstitutional.

Those are the two primary reasons that Sheriff Joe's supporters are wrong.  There are other reasons (including the fact that Sheriff Joe has no constitutional right to remain in office without facing a recall, and the fact that the citizens' right to hold a recall election is set forth in the Arizona Constitution, among others), but these suffice.  Is the recall petition drive something that harasses him?  Perhaps.  But it cannot be considered unconstitutional.