Show Your Work: Abraham and the Future of Arizona’s Public Record Review

By Annie Weiler. 

The First Amendment’s speech, assembly, and petition protections mean pretty little if citizens can’t actually access and share the information that fuels public debate. In this way, the First Amendment functionally relies on the right to request government records—to peer behind the curtain, to see how the sausage gets made, to hold institutions accountable for how they delegate or wield authority. Transparency isn’t just good governance—it’s necessary for a functional Constitution. 

But there has always been, and always will be, a litigious tension between the public’s right to know and the government’s impulse to keep the curtains drawn. How that balance is struck depends on who’s holding the pen. In the United States, each state writes its own public records laws, deciding for itself how far transparency should reach. 

Recently, that tension found a new home in public education. In the University of North Carolina system, administrators can’t decide whether to disclose class syllabi in a public records request. The University of Idaho faced scathing backlash for sending a journalist a $484.46 invoice for requesting records. And earlier this year, a Kentucky newspaper blasted its state universities as some of the country’s worst open-records offenders. 

Arizona isn’t immune from public education records fights, nor from the hot water accompanying them. When Dr. Matthew Abraham, a former professor at the University of Arizona, learned he wasn’t chosen for the school’s Committee on Academic Freedom and Tenure, he requested a variety of records—minutes from faculty committee meetings and hiring procedures, to name a few. The University handed over some but blocked others, citing privacy, confidentiality, and the state’s best interests. To date, the blocked documents remain unreleased.

Now, the four-year records battle has landed at the Arizona Supreme Court’s doorstep. This upcoming term, the justices will evaluate how much sunlight Arizona’s public institutions owe the public. With it, the Court might fundamentally rewrite Arizona’s public record standard of review, undercutting how appellate courts may engage with those decisions on appeal.

Arizona’s Public Records Act

Arizona’s Public Records Act, codified in Title 39 of the Arizona Revised Statutes, allows the public to request agency policies, legal memoranda, accident reports, and more. Unlike most other states, Arizona’s law applies to all three branches of government, and fees may be waived for media or public interest requests.  

To its credit, Arizona’s institutions perform pretty well on transparency. By most measures—like accessibility, response time, cost—the Copper State ranks among the nation’s best in terms of public records responses, sitting pretty in the upper third. And when agencies fall short, Arizona’s appellate courts have historically shown little patience, reviewing records disputes de novo. 

A standard of review describes the scrutiny that an appellate court gives a trial court’s decisions. With de novo review, an appellate court looks at the legal issues with fresh eyes. Because de novo review only applies to questions of law, the appellate court doesn’t defer to the lower court’s reasoning or conclusions. That distinction matters. Whether the appellate court defers—or doesn’t—to the trial court can determine if an issue is viable, let alone successful. 

Abraham v. Arizona Board of Regents

As a longtime English professor, Abraham spent over two decades navigating the ins and outs of higher education. When University of Arizona administrators passed over his Associate Vice Provost application, Abraham turned his curiosity on the process itself. Between 2018 and 2020, he filed a flurry of public records requests with the University, seeking faculty committee meeting minutes, academic hiring information, and, later, internal faculty survey data.

The University wasn’t exactly forthcoming. It released some materials in full, partially redacted others, and withheld the rest, citing privacy, confidentiality, and every official’s favorite blanket coverage, “the best interests of the state.” When Abraham retained counsel and followed up with a demand letter, turning a transparency exercise into potential litigation, the University shrank back. Suddenly, some of those previously redacted and withheld documents seemed fine to release.

Still, the University claimed that other documents just didn’t exist, ultimately producing 1,700 record pages and a meticulous redaction log.

Later, Abraham filed a special action complaint against the Arizona Board of Regents, which governs Arizona’s public universities. After a carousel of motions, orders, and eventually, a bench trial, the trial court concluded that while the University had “substantially abused its discretion and/or acted arbitrarily” before receiving Abraham’s demand letter, it had effectively “cured” its abuse by later forking over some of the documents.

On appeal, Division Two of the Arizona Court of Appeals took the opportunity to clarify what standard of review should govern public records disputes. It held that appellate courts must (1) review de novo whether the state entity invoked a specific, legally sufficient harm rooted in confidentiality, privacy, or the state’s best interests, and (2) apply an abuse-of-discretion standard in evaluating the entity’s actual decision to withhold or redact documents.

Applying that two-prong test, the court sided with the University, finding that Abraham was not entitled to the records. The University’s rationale seemed convincing enough, and even if the trial court got it wrong, the appellate court didn’t want to step in unless the mistake constituted judicial abuse.

A De Novo Departure

Articulating a two-prong test usually doesn’t make headlines if it merely restates existing doctrine. But Arizona’s freshly-minted two-prong test might do more than that. Critics argue the additional abuse of discretion prong deviates from precedent, which solely reviewed denying access to public records as de novo.

In the 1990s, Cox Arizona Publications v. Collins, a foundational Arizona public records case, tried to clean up the standard of review. There, the Court plainly stated that whether an agency may withhold records is “an issue of law which we review de novo.” Over and over and over again, Arizona courts affirmed this: when the government denies access to public records, appellate courts will give the case a fresh look. But no case has yet squarely decided whether this is the right way to do it. Soon, the Arizona Supreme Court will decide whether to greenlight this more deferential approach or reaffirm that public records review remains strictly de novo.

While this issue is wrapped head-to-toe in seemingly ivory tower terms of art, it’s not merely an academic exercise. Under this novel approach, appellate courts would apply a substantially more deferential standard for individual withholding and redaction decisions, reserving true de novo review only for the supposed harm’s sufficiency and specificity. It limits meaningful review to the abstract interests at stake while insulating document-by-document redaction—arguably the most consequential part—from substantive scrutiny.

So the two-prong test signals an unnecessary deference to the withholding authority, effectively letting appellate courts rubber-stamp trial decisions while confining their review to granular value judgments. If the state can wax poetic in their answer and find a charismatic enough prima facie case, then without something short of egregious error, the appellate court’s hands are tied. In this way, the new test tilts the needle toward nondisclosure. 

Conclusion

Few things shape outcomes on the ground more than the First Amendment. But the First Amendment is only meaningful when valuable information reaches those who can act on it. This new standard of review, if upheld, weakens the government’s burden to restrict public records access. And if “access and disclosure is the strong policy of the law,” then Arizona appellate courts must be able to meaningfully review trial court public record decisions.

Now, the Arizona Supreme Court must preserve the de novo standard of review for public records cases, which keeps the burden on the government to explain why transparency should yield. Deferring to the trial court would fundamentally alter how Arizonans can access public records—and, by extension, how they exercise their rights to free press, free speech, and free assembly.