DES records refusal returns to trial court

The agency in charge of protecting vulnerable adults can't automatically close off its records to reporters, the Arizona Supreme Court ruled Monday.

In a unanimous decision, the justices acknowledged that the records of the Adult Protective Services division of the Department of Economic Security are generally confidential except for certain exceptions. And one of those is for "bona fide research.''

But Justice Ann Scott Timmer, writing for the court, said that doesn't mean only those doing academic research. She said the wording of the exception also permits access by others, including journalists.

Monday's ruling, however, is not a clear victory for Amy Silverman, who first requested access to the records four years ago as part of a project the freelance writer was doing for the Arizona Daily Star and KJZZ.

While the justices rejected the blanket denial by DES, even after Silverman agreed to let them redact names and other identifying information, they agreed to give the agency a chance to argue to the trial judge that her work does not fit into the "bona fide research'' exemption to the secrecy requirements. And that will require a new set of hearings.

Gregg Leslie, director of the First Amendment Clinic at the Arizona State University College of Law, who represents Silverman, said a lot of it now depends on DES. He said the Supreme Court has now spelled out the factors it can use in granting or denying access.

"I hope the agency would come to the bargaining table and come up with something that will let us get this resolved without having to do much more before a court,'' Leslie said. But if the agency keeps fighting and there has to be a lengthy court hearing, "that could take years.''

Tasya Petersen, the press secretary for DES, said her agency is evaluating the ruling and will work to create a factual record to be reviewed once it goes back to a trial judge.

Leslie acknowledged that the ruling, while significant, also is narrow.

It affects only those records dealing with investigations by Adult Protective Services, which is in charge of receiving, evaluating and investigating reports of abuse, exploitation and neglect of vulnerable adults. It does not apply to other state records such as those maintained by the Department of Child Safety.

Still, Leslie said, the principles that the Supreme Court laid out about access to records could be "influential'' in other cases.

Silverman, who now is a staffer at KJZZ, sought the records as part of reporting on how DES either protects or fails to protect vulnerable adults. She asked only for materials concerning closed cases and acknowledged that DES would likely redact names and addresses.

The agency refused, citing confidentiality provisions.

Silverman pointed out that exception for bona fide research. But the agency raised a series of issues, claiming, for example, that exception is only for academics or for research that would directly benefit the agency.

Timmer said it's not that narrow.

She said one goal of Adult Protective Services is to facilitate delivery of social services to resolve issues of abuse, exploitation or neglect of vulnerable adults. And that includes receiving and evaluating reports.

"Enabling research on these topics ... advances APS' program goal because any fruitful results could illuminate better ways to protect vulnerable adults,'' Timmer said.

Conversely, the justice said, she and her colleagues could not support arguments that "research'' includes any subject for any reason.

Beyond that, Timmer said that requests cannot be overly narrow to the point where they could reveal personal identities, even if names and addresses are redacted.

"However, a researcher could seek APS records reflecting reports of financial exploitation of vulnerable adults over the age of 60, if personally identifying information is withheld to protect the identities of vulnerable adults, those who reported the exploitation, or those who provided services,'' she wrote.

And Timmer rejected the idea that research must be for educational, administrative or scientific purposes.

"Applying these modifiers would foreclose research performed for other purposes, such as investigating whether APS uses the best methods in responding to reports of neglect, abuse, or exploitation,'' she wrote. And Timmer said if DES is unhappy with all that, it is free to ask the Legislature to rewrite the statute.

Silverman did manage to produce a report in 2022 called "Unsafe'' based on the information she was able to gather despite being denied DES records. It detailed physical and sexual abuse, as well as neglect, against people with intellectual and developmental disabilities can occur anywhere -- and that often nothing is done about it.

But Silverman said Monday's Supreme Court ruling opens the door to future research, not just by her but by other reporters.

 

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