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VENDOR/BUYER CONFERENCE

By Don Harris

How to Comply with

Public Records Requests
Carrie L. O’Brien Diana Kerfoot

Vendors and the general public are entitled to see all public records, but privacy, such as an individual’s home address and personal email, O’Brien
not every document maintained by school districts qualifies as a public said. A third exception is if releasing the information is not in the best
record. interest of the school district.
Under Arizona law, taxpayers are able to see records of school districts “That’s the weakest reason not to disclose and the most common area
and other public entities to see how their tax dollars are being spent. of litigation,” she said.
In a breakout session at the Vendor/Buyer Conference on January 29, The Arizona Attorney General’s Agency Handbooks was recommended
Kevin Startt, Director of Purchasing, Tucson Unified School District; Carrie as an excellent resource for public records issues.
L. O’Brien, an attorney with Gust Rosenfeld, and Diana Kerfoot, Manager If the request is for commercial purposes, it was recommended that
of Purchasing for Tucson Unified School District, explained what AASBO school officials review KDB-R for how to calculate fees.
members and vendors can expect in the world of public records. O’Brien explained the legal definition of commercial purpose is “the
The law requires school officials to maintain records that are reasonably use of a public record for the purpose of sale or resale; obtaining names
necessary to provide an accurate accounting of government-funded and addresses from public records for solicitation; or the sale of names
activities, and those records are open to public inspection and must be and addresses to another for the purpose of solicitation or for any purpose
disclosed upon request. in which the purchaser can reasonably anticipate the receipt of monetary
Some requests are simple, enabling records to be made available easily, gain from the direct or indirect use of the public record.”
perhaps sending the information electronically. Other requests may be Startt suggested that if someone asks for 50 copies of a bid file, that
much more complicated and time consuming. should be made in the form of a formal request. “It’s good to have a request
Startt emphasized that records that are part of your job must be in writing,” he said.
retained, while other records may be discarded. “But if you keep records Kerfoot cautioned: ”They probably want vendors to subscribe to their
that you didn’t need to keep, you have to provide them if requested,” Startt service. They tell you they’ll help you.”
said. “You can charge for the cost of copying, but not for the time it takes to O’Brien pointed out: “Newspapers are not commercial. You cannot
retrieve and redact the records.” charge for electronic records, but you could charge for a flash drive.”
The law also requires you to act promptly. Startt recommended On the issue of whether a school can deny a large request for records,
communicating with the requester and providing an estimate of how the answer is: No. Startt said a court has determined that public records
much time will be needed. O’Brien recommended fulfilling what you requests cannot be considered “a public nuisance.”
can as quickly as possible, and providing the rest of the information as it ‘You cannot deny a request,” he said.
becomes available. She suggests no more than a 30-day turn-around. O’Brien cautioned against holding on to records longer than you have
O’Brien pointed out that everything is not a public record. “Public to. “That could be a liability,” she said. “If you keep them, you have to
record is broad but not unlimited,” she said. “There must be a substantial provide them.”
nexus between the record and government activities. Determination is Regarding how long records must be retained, the Arizona Library
content-driven and can be a double-edged sword.” and Archives General Record Retention Schedule of Purchasing and
An email to your spouse about a family matter is not a public record, Procurement Records was revised in September 2018.
O’Brien said. “Sometimes people use personal emails for their job and Vendors were urged to request only the specific information needed.
that could be a public record, especially if they’re trying to subvert public “It’s not a fishing expedition,” O’Brien said. “Be specific about which
records law.” documents you need.”
O’Brien strongly recommended always using you work email for work-
O’Brien recommended that school district employees, if possible,
related business. should have a lawyer or at least “a fresh set of eyes” to review documents
Anyone may request to examine or be furnished copies, printouts or
photographs of any public record during regular office hours. Most public before releasing information.
information is on a school district’s website and is available electronically. When redacting, Kerfoot recommended blacking out that verbiage.
Public records are just about everything you have – books, papers, Stratt’s advice to AASBO members when dealing with requests for
electronic media, regardless of physical form or other characteristics, public records: “Whatever you do, you want to be fair. Keep everything on
made or received by any governmental agency … in connection with the a level playing field. “
transaction of public business and includes records made confidential by Kevin Startt can be reached at: kevin.startt@tusd1.org
statute.
“Basically, most of what you touch is a public record,” O’Brien said. Diana Kerfoot can be reached at: Diana.Kerfoot@tusd1.org
There are three exceptions, such as documents designated confidential
by law, including student records and medical records. Another involves Carrie O’Brien can be reached at: cobrien@gustlaw.com

24 THE EDGE | SPRING 2019