Opinion
1 CA-CV 10-0862
02-14-2012
PHOENIX LAW ENFORCEMENT ASSOCIATION, an Arizona corporation; and JUDICIAL WATCH, INC., a District of Columbia corporation, Plaintiffs/Appellants, v. CITY OF PHOENIX, a body politic and a municipal corporation of the State of Arizona, Defendant/Appellee.
Napier Abdo Coury & Baillie, PC By James P. Abdo Judicial Watch, Inc. By Paul J. Orfanedes Michael Bekesha Co-Counsel Attorneys for Plaintiffs/Appellants Gary Verburg, Phoenix City Attorney By James J. Sampanes, Assistant City Attorney Attorneys for Defendant/Appellee
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2010-001674
The Honorable Dean M. Fink, Judge
AFFIRMED IN PART/REVERSED AND REMANDED IN PART
Napier Abdo Coury & Baillie, PC
By James P. Abdo
Phoenix
and
Judicial Watch, Inc.
By Paul J. Orfanedes
Michael Bekesha
Co-Counsel Attorneys for Plaintiffs/Appellants
Washington, D.C.
Gary Verburg, Phoenix City Attorney
By James J. Sampanes, Assistant City Attorney
Attorneys for Defendant/Appellee
Phoenix OROZCO, Judge
¶1 Appellants Phoenix Law Enforcement Association and Judicial Watch, Inc. (collectively PLEA) appeal a superior court order dismissing PLEA's request to inspect a PowerPoint slideshow presentation (the PowerPoint) created by Appellee City of Phoenix (the City) and the Phoenix Police Department (PPD). For the reasons set forth herein, we affirm in part and reverse and remand in part for a determination of contested issues of fact.
PROCEDURAL AND FACTUAL HISTORY
¶2 The essential procedural and factual history is undisputed. In September 2009, Public Safety Manager and PPD Chief Jack Harris directed two PPD employees to prepare the PowerPoint for use at a meeting between representatives of the City Manager's Office and PPD. Present at the meeting were Chief Harris, PPD Executive Assistant Chief Joseph Yahner, PPD Commander Robert Handy, City Manager Frank Fairbanks, Assistant City Manager Alton Washington, City Attorney Gary Verberg and PPD Legal Advisor Lieutenant Eric Edwards.
In its Answering Brief, the City accepts PLEA's statement of the essential facts. Notations are made herein where the facts are contested by the City.
¶3 At the meeting, the PowerPoint was presented and discussed. According to the City, the PowerPoint was presented "for the purpose of obtaining legal advice and considering management options based upon that advice." Following the meeting, the City contends, Verberg and Edwards "continued to provide legal advice to Chief Harris and [] Assistant Chief Yahner" based on the information from the PowerPoint.
¶4 In October 2009, Washington contacted PLEA representative Will Buividas and told Buividas about the meeting and also described the content of the PowerPoint in detail. PLEA contends Washington never indicated to Buividas that the PowerPoint was confidential or made for the purpose of seeking legal advice.
¶5 In October and November 2009, PLEA submitted requests to obtain access to the PowerPoint pursuant to Arizona Public Records Law. PPD denied the requests, claiming the PowerPoint was protected by the attorney-client privilege and not subject to public records disclosure.
Arizona Public Records Law encompasses Arizona Revised Statutes (A.R.S.) sections 39-121 to 39-121.03 (Supp. 2011). We cite the current version of applicable statutes when no revisions material to this decision have since occurred.
¶6 On January 22, 2010, PLEA filed a special action complaint in superior court arguing the PowerPoint is a public record and requested that the court compel the City to disclose it. The City filed a motion to dismiss, arguing the PowerPoint is protected by the attorney-client privilege and therefore not subject to disclosure under the public records law. On September 8, 2010, the court granted the City's motion to dismiss. PLEA filed a timely notice of appeal.
¶7 We have jurisdiction pursuant to A.R.S. § 12-120.21.A.1 (2003) and Rule 8(a) of the Arizona Rules of Procedure for Special Actions.
DISCUSSION
Standard of Review
¶8 "When a trial court's decision to grant a motion to dismiss involves statutory interpretation, we review that decision de novo." Harris v. Cochise Health Sys., 215 Ariz. 344, 351, ¶ 24, 160 P.3d 223, 230 (App. 2007) (citing State v. Malvern, 192 Ariz. 154, 155, ¶ 2, 962 P.2d 228, 229 (App. 1998)). Whether a document is a public record is a question of law that involves statutory interpretation. See Griffis v. Pinal County, 215 Ariz. 1, 3, ¶ 7, 156 P.3d 418, 420 (2007). Thus, we review de novo the denial of access to an alleged public record. Cox Ariz. Publ'ns, Inc. v. Collins, 175 Ariz. 11, 14, 852 P.2d 1194, 1198 (1993).
Arizona Public Records Law
¶9 Pursuant to A.R.S. § 39-121, "[p]ublic records and other matters in the custody of any officer shall be open to inspection by any person . . . ." Accordingly, "Arizona's public records law serves to 'open government activity to public scrutiny.'" Lake v. City of Phoenix, 222 Ariz. 547, 549, ¶ 7, 218 P.3d 1004, 1006 (2009) (quoting Griffis, 215 Ariz. at 4, ¶ 11, 156 P.3d at 421). See also Phoenix Newspapers, Inc. v. Keegan, 201 Ariz. 344, 351, ¶ 33, 35 P.3d 105, 112 (App. 2001) ("The core purpose of the public records law is to allow the public access to official records and other government information so that the public may monitor the performance of government officials and their employees.") (citation omitted).
¶10 In determining whether § 39-121 applies, Arizona courts engage in a two-step process. Courts must first make the preliminary determination of whether the document is a public record. Second, if a document meets the threshold definition of a public record, courts perform a balancing test to determine whether privacy, confidentiality, or the best interests of the state outweigh the policy in favor of disclosure. Griffis, 215 Ariz. at 5, ¶ 13, 156 P.3d at 422.
Whether the PowerPoint is a Public Record
¶11 Although the Arizona statutes do not define "public record," A.R.S. § 39-121.01.B provides that "[a]ll officers and public bodies shall maintain all records . . . reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by monies from this state or any political subdivision of this state." The Arizona Supreme Court has interpreted § 39.121.01.B to require public officials to make available all records "reasonable necessary to provide knowledge of all activities they undertake in the furtherance of their duties." Carlson v. Pima County, 141 Ariz. 487, 490, 687 P.2d 1242, 1245 (1984). Accordingly, "Arizona law defines 'public records' broadly and creates a presumption requiring the disclosure of public documents." Griffis, 215 Ariz. at 4, ¶ 8, 156 P.3d at 421 (citations omitted).
¶12 Nevertheless, public records law does not compel a public entity to disclose every document it holds or produces. Lake, 222 Ariz. at 549, ¶ 8, 218 P.3d at 1006 (citations omitted). "Only documents with a 'substantial nexus' to government activities qualify as public records, and the nature and purpose of a document determine whether it is a public record." Id.
¶13 In this case, the superior court relied on the definition of a public record set forth in Griffis:
A public record is215 Ariz. at 4, ¶ 9, 156 P.3d at 421 (quoting Salt River Pima-Maricopa Indian Cmty. v. Rogers, 168 Ariz. 531, 538-39, 815 P.2d 900, 907-08 (1991)).
[1] one "made by a public officer in pursuance of a duty, the immediate purpose of which is to disseminate information to the public, or to serve as a memorial of official transactions for public reference";
[2] a record that is "required to be kept, or necessary to be kept in the discharge of a duty imposed by law or directed by law to serve as a memorial and evidence of something written, said or done"; or
[3] any "written record of transactions of a public officer in his office, which is a convenient and appropriate method of discharging his duties, and is kept by him as such, whether required by . . . law or not."
Griffis and Salt River are among a line of cases, beginning with our supreme court's seminal opinion in Mathews v. Pyle, 75 Ariz. 76, 251 P.2d 893 (1952), in which Arizona courts endeavored to interpret and clarify Arizona's Public Records Law. In Mathews, the supreme court first articulated the definition of a public record set forth in Griffis and Salt River. Mathews, 75 Ariz. at 78, 251 P.2d at 895.
¶14 The superior court held that the PowerPoint does not satisfy the first or second definitions because "its content was not intended for the public" and PLEA failed to direct the court to "any legal requirement that a record of the meeting, or documents discussed at it, be kept." The court noted that "the third definition might be satisfied" because PPD officials might have created the PowerPoint as a "'convenient and appropriate method of discharging' their duty to present the information to their superiors." But the court found that because PLEA did not allege "that retention of the PowerPoint itself implicates the discharge of [PPD officials'] duties," PLEA could not rely on that definition. Accordingly, the court concluded that it was "not persuaded that the PowerPoint is a public document at all."
¶15 Although the Griffis/Mathews definition provides a useful starting place for evaluating whether a document is a public record, the superior court erred by construing the definition of a public record too narrowly. As the supreme court has noted, the 1975 adoption of § 39-121.01.B expressed the legislative intent to "supplement[] the Mathews definition," Lake, 222 Ariz. at 550, ¶ 9, 218 P.3d at 1007, and "define those matters to which the public right of inspection applies more broadly." Carlson, 141 Ariz. at 489, 687 P.2d at 1244. "[A]ll records required to be made and maintained by § 39-121.01(B) . . . are to be available for inspection under § 39-121 . . . ." Carlson, 141 Ariz. at 491, 687 P.2d at 1246.
¶16 Here, it is uncontested that the PowerPoint was (1) created by PPD employees, (2) to be presented to City officials, (3) for the governmental purpose of "considering management options" based on legal advice. Accordingly, the PowerPoint was clearly a reasonably necessary or appropriate means of maintaining an accurate knowledge of PPD's official activities within the meaning of § 39-121.01.B. Furthermore, the PowerPoint also falls under § 39-121.01.B because it was created by PPD employees and presented to City officials, thus constituting a record of PPD's "activities which are supported by monies from the state." Therefore, we find the PowerPoint bears "a 'substantial nexus' to government activities" and comes within the threshold definition of a "public record." See Lake, 222 Ariz. at 549-50, ¶¶ 7-9, 218 P.3d at 1006-07; see also Griffis, 215 Ariz. at 4-5, ¶¶ 10-13, 156 P.3d at 421-22; Carlson, 141 Ariz. at 489-91, 687 P.2d at 1244-46.
¶17 The City contends the PowerPoint does not meet the threshold definition because it is not a "record of any activity, official or otherwise." (Emphasis in original). According to the City, public records law should not be construed as allowing public access to "the thought processes, mental impressions or internal considerations [of government officials] that do not result in government action." Thus, the City contends, because "there was no action [] based upon the PowerPoint," it does not meet the definition of a public record under either the Mathews or § 39-121.01.B definitions.
¶18 The City does not, however, cite any authority for its proposition that a document must result in some form of official government action to be considered a public record. Instead, it relies on our supreme court's language in Lake that public records must bear a "substantial nexus to government activities." See Lake, 222 Ariz. at 549, ¶ 8, 218 P.3d at 1006. We do not interpret the language from Lake so narrowly. Indeed, in Lake, the court held that embedded metadata, which is electronic data created by a computer to describe "the history, tracking, or management of an electronic document," is subject to disclosure the same as the underlying document. 222 Ariz. at 551, ¶ 14, 218 P.3d at 1008. We are inclined to view the PowerPoint as more substantially related to government activity than the metadata involved in Lake. In any event, the very creation of the PowerPoint was government activity, as was the presentation of the PowerPoint to City officials and attorneys. Thus, we reject the City's argument that the PowerPoint is not a public record because it did not document or result in official activity.
We assume it is the reference to "government activity" in the quoted phrase from Lake that leads the City to argue that public records must either document or result in official activity.
Lake, 222 Ariz. at 548 n.1, ¶ 2, 218 P.3d at 1005 n.1 (citation omitted).
Whether the PowerPoint Must Be Disclosed
¶19 Having found the PowerPoint meets the threshold definition of a public record, we move to the second part of our public records analysis. Here, we determine whether privacy, confidentiality, or the best interests of the City in this case outweigh the Arizona policy in favor of disclosing public records.
¶20 "Despite the unlimited disclosure expressed by the wording of § 39-121, the availability of records for public inspection is not without qualification." Carlson, 141 Ariz. at 490, 687 P.2d at 1245. Specifically, "important public policy considerations relating to protection of either the confidentiality of information, privacy of persons or a concern about disclosure detrimental to the best interests of the state" may allow a public entity to decline a request to inspect a public record. Id. (citing "common law limitations" on public records disclosure).
¶21 The City argues the PowerPoint should not be disclosed because it is protected by the attorney-client privilege. It contends the PowerPoint is a privileged communication because it was created and presented "for the purpose of obtaining legal advice and considering management options based upon that advice."
¶22 Citing A.R.S. § 12-2234 (2003), PLEA argues the attorney-client privilege only protects an attorney from being examined as to his communications with his client, but does not shield the client from being questioned about the same communications. PLEA contends that because subsection A of the statute states that "an attorney shall not . . . be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment," the privilege only prohibits the questioning of the attorney but allows questioning of the client.
¶23 We reject PLEA's argument, and hold that under Arizona law, the attorney-client privilege protects a client from being questioned about communications with his attorney. Although § 12-2234 expressly prohibits asking an attorney about communications with a client, it does not purport to limit the longtime common law privilege that protects a client from being questioned about his communications with his lawyer. Indeed, the common law privilege is held by the client, not by the lawyer. Buell v. Superior Court, 96 Ariz. 62, 68, 391 P.2d 919, 923 (1964) (the attorney-client privilege "is a privilege of the client, and not of the attorney"); see Roman Catholic Diocese v. Superior Court, 204 Ariz. 225, 228, ¶ 6, 62 P.3d 970, 973 (App. 2003) (under § 12-2234, "any communications between an attorney and an employee or agent of the corporation, made for the purpose of providing legal advice or obtaining information to provide legal advice, are protected").
¶24 PLEA argues § 12-2234 represents the legislature's decision to narrow the common-law privilege and cites Roman Catholic Diocese for the proposition that the legislature may narrow "privileges by statute, and courts will recognize [such] rules when they are reasonable and workable." 204 Ariz. at 231, ¶ 16, 62 P.3d at 976 (internal quotation marks omitted). PLEA misinterprets Roman Catholic Diocese. In that case, the court explained that the legislature may create or expand privileges by statute "[s]o long as attorneys and their clients are entitled to the benefits of the basic privilege." Id. Under the common law attorney-client privilege, neither the attorney nor the client could be questioned about or asked to produce confidential communications or documents. Upjohn Co. v. United States, 449 U.S. 383, 394-96 (1981) (holding that, pursuant to the common law attorney-client privilege, confidential communications made to an attorney for the purpose of seeking legal advice "must be protected against compelled disclosure," and stating that "[t]he client cannot be compelled to answer the question, 'What did you say or write to the attorney?'") (citations and internal quotation marks omitted)). See also State v. Rodoussakis, 511 S.E.2d 469, 480 (W. Va. 1998) (pursuant to the attorney-client privilege, "[a] party may refuse on the ground of privilege to state whether he communicated certain facts to his attorney.") (citation omitted); Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 601 (8th Cir. 1977) (under federal common law, "confidential communications between an attorney and his client are absolutely privileged from disclosure against the will of the client.") (citation omitted).
¶25 Pursuant to Rule 501 of the Arizona Rules of Evidence, privileges shall be governed by the principles of the common law except as otherwise required by applicable statute or rule. As noted, A.R.S. 12-2234.A does nothing to change the common law rule that a client may not be questioned or forced to disclose a communication with his attorney. "Under rules of statutory construction, if the common law is to be changed, supplemented, or abrogated by statute, it must be done expressly or by necessary implication. If the legislature fails to clearly and plainly manifest an intent to alter the common law, the common law remains in effect." Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d 870, 873 (1991) (citations omitted). Accordingly, we reject PLEA's argument that it can avoid the attorney-client privilege by requesting the PowerPoint directly from PPD instead of the City's attorneys.
See also A.R.S. § 1-201 (2002) (the common law "shall be the rule of decision in all courts of this state" so long as it is not "inconsistent with the Constitution of the United States or the constitution or laws of this state"); Pleak v. Entrada Prop. Owners' Ass'n, 207 Ariz. 418, 422, ¶ 12, 87 P.3d 831, 835 (2004) ("[I]f the common law is to be changed or abrogated by statute, the legislature must do so expressly or by necessary implication. Absent a clear manifestation of legislative intent to abrogate the common law, we interpret statutes with every intendment in favor of consistency with the common law.") (citations and internal quotation marks omitted).
¶26 Next, PLEA asserts that the PowerPoint is merely a collection of facts, which individually are not subject to privilege protection and therefore should not be protected as an amalgamation. See A.R.S. § 12-2234.C; Samaritan Found. v. Goodfarb, 176 Ariz. 497, 501, 862 P.2d 870, 874 ("The privilege does protect disclosure of the communication but does not protect disclosure of the underlying facts by those who communicate with a lawyer.").
¶27 Although we agree that the facts a client communicates to his lawyer are not protected from disclosure in civil litigation, the attorney-client privilege allows the client to refuse to disclose what facts he discussed with his attorney. See Samaritan Found. , 176 Ariz. at 503, 862 P.2d at 876 ("As to these kinds of legal communications, including the communication of facts, we hold that all communications made in confidence to counsel in which the communicating employee is directly seeking legal advice are privileged."). In this case we deal with circumstances more similar to the latter situation than the former. In other words, we have no doubt that in a civil action, City representatives could not, consistent with Arizona Rule of Civil Procedure 26.1, decline to disclose facts simply because they were mentioned in the PowerPoint. At issue here, however, is the City's obligation to allow inspection of the PowerPoint under the public records law, not the City's obligation to disclose facts in a civil litigation. If the PowerPoint is a privileged communication, it is not subject to inspection under the public records law even if it contains nothing more than facts. See also A.R.S. § 12-2234.B.
That the PowerPoint was an electronic document, which may have been a slideshow presentation of a collection of facts, does not change our analysis. The PowerPoint was simply the preferred medium through which the City chose to make the communication, which will nevertheless be afforded privilege protection if it was made for the purpose of seeking legal advice. See Samaritan Found., 176 Ariz. at 503, 862 P.2d at 876; Restatement (Third) of the Law Governing Lawyers §§ 68-69, 86 (2000).
¶28 PLEA lastly argues that even if the privilege applies to the PowerPoint, the City failed to satisfy a material element of the privilege because it did not show that the communication was "made in confidence" and "treated as confidential".
In a footnote, PLEA appears to also argue that Washington's disclosure acted to waive the privilege. However, we do not address the waiver issue because the superior court found that PLEA failed to timely raise the issue below. See Orfaly v. Tucson Symphony Soc'y., 209 Ariz. 260, 265, ¶ 15, 99 P.3d 1030, 1035 (App. 2004) (arguments raised for the first time on appeal are untimely and deemed waived).
¶29 The attorney-client privilege is preserved "if the communication was made in the context of the attorney-client relationship and was maintained in confidence." Alexander v. Superior Court, 141 Ariz. 157, 162, 685 P.2d 1309, 1314 (1984) (citations and internal quotation marks omitted). See also Samaritan Found. , 176 Ariz. at 501, 862 P.2d at 874 ("[T]o be privileged, the communication must be made to or by the lawyer for the purpose of securing or giving legal advice, must be made in confidence, and must be treated as confidential.") (citations omitted); Restatement (Third) of the Law Governing Lawyers §§ 68, 71 and 86; United States v. Jicarilla Apache Nation, ___ U.S. ___, 131 S. Ct. 2313, 2321 (2011) ("[T]he Government may invoke the attorney-client privilege in civil litigation to protect confidential communications between Government officials and Government attorneys.") (citation omitted).
¶30 Accordingly, failure to take steps to preserve the confidential nature of a communication will destroy the attorney-client privilege. See Alexander, 141 Ariz. at 163, 685 P.2d at 1315 ("If the client himself does not treat the particular communication as privileged, that communication will not be recognized as a confidence by this court.") (citation omitted); Samaritan Found. , 176 Ariz. at 501, 862 P.2d at 874 ("What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.") (citation omitted); State v. Sucharew, 205 Ariz. 16, 22, ¶ 11, 65 P.3d 59, 64 (App. 2003) ("The presence of a third person will usually defeat the privilege on the ground that confidentiality could not be intended . . . .") (citations and internal quotation marks omitted). See also Upjohn, 449 U.S. at 394-95 (applying the privilege when company communications were kept confidential by the company and considered to be "highly confidential" when made); Petty v. Superior Court, 116 Cal. App. 2d 20, 29, 253 P.2d 28, 34 (1953) (holding that the privilege does not apply to communications that were not treated as confidential).
¶31 The City argues that "[a]lthough confidentiality is always a best practice when dealing with attorney-client privileged communications, a review of [A.R.S. § 12-2234]'s plain language shows that there is no element of confidentiality in the amended civil attorney-client privilege statute as it applies to [the City]." The City cites Roman Catholic Diocese, for the proposition that, as for entities, § 12-2234 protects any communication, regardless of whether that communication is treated as confidential.
¶32 We see nothing in the language of Roman Catholic Diocese, however, indicating the legislature meant to abrogate the fundamental principle that a communication must be made in confidence for the privilege to apply. Roman Catholic Diocese discusses whether § 12-2234 protects information that does not concern an employee's own conduct, not whether an entity is required to maintain confidentiality of a privileged communication. 204 Ariz. at 228-29, ¶¶ 5-6, 62 P.3d at 973-74. Although the City is undoubtedly correct that entities face particular difficulties in maintaining the confidentiality of communications subject to the privilege, the confidentiality requirement remains a fundamental element of the attorney-client privilege in Arizona, even for entities and governmental agencies. See Ariz. Indep. Redistricting Comm'n. v. Fields, 206 Ariz. 130, 142, ¶ 39, 75 P.3d 1088, 1100 (App. 2003) (under § 12-2234, "the attorney-client privilege only applies to confidential communications made for the purpose of obtaining or providing legal assistance for the client").
See also Bus. Integration Servs., Inc. v. AT & T Corp., 251 F.R.D. 121, 124 (S.D.N.Y. 2008) (analyzing the attorney-client privilege for entities and noting that the party asserting the privilege has the burden of establishing its elements, including that the communications "were made in confidence") (citation omitted); In re Grand Jury Proceedings, 219 F.3d 175, 183-84 (2d Cir. 2000) (discussing waiver of the attorney-client privilege by an entity through disclosure).
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¶33 In this case, it is undisputed that Washington disclosed the existence of the PowerPoint and PLEA contends he described its content in detail. This disclosure appears to be inconsistent with the intent to treat the PowerPoint as a confidential communication. Thus, despite the City's assertion that the PowerPoint "was made in confidence for the purpose of securing legal advice and has at all times been treated as confidential by [PPD]," PLEA has presented at least enough facts to raise an issue regarding whether the City and City officials present at the meeting actually intended to treat the PowerPoint as a confidential communication.
¶34 However, although PLEA raised this argument below, the superior court did not make any factual or legal determinations on the issue. In fact, the superior court noted in its minute entry that to address the asserted breach of confidentiality, "[i]t would [] be necessary to determine whether Mr. Washington was an authorized agent of the City for the purpose of [losing] the privilege by disclosure. In addition, it would be necessary to know the exact scope of the disclosure." In the absence of further information in the record, we cannot determine whether the PowerPoint was intended to be treated as a confidential communication. Thus, we remand the issue to the superior court to determine whether the evidence supports PLEA's argument that the City failed to treat the PowerPoint as a confidential communication and thereby lost the protection of the attorney-client privilege.
City's Request for Attorney Fees
¶35 Lastly, the City requests its attorney fees on appeal pursuant to A.R.S. § 12-349.A.1 (2003), ARCAP 21, and Ariz. R. Civ. P. 11(a). The City argues PLEA's appeal was frivolous because PLEA's argument that the attorney-client privilege applies only to the attorney is baseless.
¶36 Rule 25 of the Arizona Rules of Civil Appellate Procedure provides for the award of attorney fees as a sanction when an appeal "is frivolous or taken solely for the purpose of delay," and A.R.S. § 12-349 provides for attorney fees when a claim is brought without substantial justification or for delay or harassment. Sklar v. Town of Fountain Hills, 220 Ariz. 449, 455, ¶ 23, 207 P.3d 702, 708 (App. 2008). We conclude that this appeal was not frivolous or otherwise unjustified, especially in light of the fact that we are remanding for a determination of contested issues of fact, and therefore deny the City recovery of attorney fees based on these grounds.
CONCLUSION
¶37 For the foregoing reasons, we affirm in part and reverse and remand in part to the superior court for a determination consistent with this decision of whether Washington's disclosure manifested that the City did not regard the PowerPoint as a confidential communication.
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PATRICIA A. OROZCO, Judge
CONCURRING:
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DIANE M. JOHNSEN, Presiding Judge
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PATRICIA K. NORRIS, Judge