County Attorney Fights Records Request

PHOENIX (CN) - The Pima County Attorney sued a private investigator, claiming she need not respond to a request for records on all felony cases her office has prosecuted since 2002, because the private eye wants to use them for commercial purposes.

Pima County Attorney Barbara LaWall sued Richard R. Robertson and R.R. Robertson LLC dba R3 Investigations, in Maricopa County Court.

The Pima County seat is Tucson.

Robertson in October filed a public records request for data related to "all criminal cases prosecuted by [the County Attorney] that were initiated in calendar years 2002 through current."

LaWall says she need not provide that information unless Robertson promises not to use the information for commercial gain.

But that's what he plans to do, the county attorney says. On its website, R3 Investigations claims it can "provide a variety of analyses" to "criminal defense attorney[s]" to "analyze plea offers, present arguments during settlement conferences, or address the sentencing judge," the lawsuit states.

LaWall says she "believes R3 intends to use the requested data to prepare 'analyses' for sale to clients, including criminal defense attorneys."

LaWall notified R3 Investigations on Nov. 12 that she found it would use the requested information for a commercial purpose.

R3 responded in a Nov. 25 letter that her findings were "unsupported," and that it seeks the documents for noncommercial purposes.

The letter claims the information "sought by R3's public records request will effectively populate the 'tool' that allows R3 to analyze sentencing data when requested by a defense attorney who believes that such data will be useful to her client's case. R3 does not, therefore, simply resell the raw data it seeks via its public request."

Robertson told Courthouse News that he believes the push-back he received is because no one has asked for this information before.

"I think there is a huge misunderstanding among public agencies," Robertson said. "They seem to confuse the difference between a commercial use versus a commercial user."

LaWall says in the complaint that a "proper response to the request depends on construing the statutory definition of commercial purpose in light of the facts in this case. If the purpose is determined to be commercial, defendants must provide a proper statement of commercial purpose in order to permit evaluation ... and to bind defendants to proper use."

The county attorney says identification of the commercial purpose is important because it "allows the custodian of the requested records to evaluate the stated commercial purpose to determine if it 'is a misuse of public records or is an abuse of the right to received public records.'"

If the records will be used for a commercial purpose, R3 Investigations must pay for them, which "will enable the County Attorney to offset the taxpayer-financed burden imposed upon the County Attorney in having to produce such a vast amount of data, including several hours of time spent by the County Attorney's Information Technology staff generating a search query to obtain the data, as well as additional staff time spent reviewing the request and preparing a response," LaWall says.

Robertson said it is important to see how prosecutors resolve criminal cases.

"I think the whole problem here is that for whatever reason the Pima County Attorney's Office doesn't want me to have this data," Robertson said. "I don't know if they are fearful of how this data will end getting used and come back to them."

LaWall seeks a declaration that the records R3 Investigations seeks are for a commercial purpose, and that she "need not provide records in response to the request unless and until defendants properly identify the commercial purpose for which the records are sought and agree to pay the charges."

Robertson and R3 Investigations are represented by Dan Barr with Perkins Coie.

CLARIFICATION: After this article was posted, then taken down, Deputy County Attorney Andy Flagg objected to two sentences in it.

Flagg said in an email: "First, the article inaccurately states that the County Attorney believes 'she need not provide [the requested] information unless Robertson promises not to use the information for commercial gain.' In fact, as is apparent from both our Complaint and our Office's November 12 response to Mr. Robertson (Exhibit B to the Complaint), the County Attorney's position is that commercial purpose generally does not bar a person from obtaining public records. The applicable statute merely requires that Mr. Robertson properly identify his commercial purpose for using the data, and pay the appropriate statutory charges, before the records can be provided.

"Second, the article asserts that the County Attorney believes she does not need to respond to the request. In fact, this Office did respond promptly to the request, explaining the County Attorney's position that the request was for a commercial purpose. And the lawsuit merely asks the Court to rule that Mr. Robertson and his firm must properly identify their commercial purpose and pay the statutory charges before the records must be provided."

Courthouse News apologizes for the errors.

Follow @jamierossCNS

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