From Silverman v. Ariz. Health Care Cost Containment Sys., decided Thursday by the Arizona Court of Appeals (in an opinion by Chief Judge Kent E. Cattani, joined by Judge Cynthia J. Bailey and Vice Chief Judge David B. Gass):
This public records case presents a narrow issue of potentially broad import. Arizona law does not require a public entity to create any new record in response to a public records request. But does using encryption to redact non-disclosable information stored in an electronic database necessarily constitute creation of a new record? We hold that it does not.
This concept is particularly important in a case like this one, in which the public entity uses non-disclosable data as a critical part of its database structure (as the relational keys linking different tables). Thus, requiring the agency to use a one-way cryptographic hash function to redact the non-disclosable data—substituting a unique hashed value that masks protected information without destroying its function in the database—is necessary to ensure a requestor receives, to the extent possible, a copy of the real record.
And because such encryption only hides a limited aspect of the record—without adding to, aggregating, analyzing, or changing any of the underlying information—it does not create anything new and does not result in the creation of a new record. Accordingly, and for reasons that follow, we reverse the superior court's dismissal of the journalists' public records lawsuit at issue here and remand for further proceedings consistent with this opinion….
The Arizona Health Care Cost Containment System ("AHCCCS") oversees the Arizona Long-Term Care System ("ALTCS"). Appellants Amy Silverman, Alex Devoid, and TNI Partners (d/b/a Arizona Daily Star) are journalists researching issues related to services for Arizonans with developmental disabilities, including those services provided by ALTCS. Appellants are seeking public records from AHCCCS to learn what factors affect eligibility decisions during the ALTCS application and screening process.
In February 2020, Appellants submitted a public records request for data in AHCCCS's databases for multiple categories of information provided in or related to ALTCS applications. Appellants acknowledged that healthcare-related information would have to be de-identified to comply with privacy rules under the Health Insurance Portability and Accountability Act ("HIPAA"). Noting that the requested data might be contained in multiple tables, Appellants requested that, for de-identified data, AHCCCS "include a unique identifier, such as a hash key, to replace" information necessary to distinguish different individuals' records. Appellants' request expressly did not ask AHCCCS to "join tables together … or to conduct any type of analysis on the data," provided any existing relational keys remained intact….
Appellants eventually sued under the Arizona public records act, and here's how the court of appeals analyzed this:
Under Arizona law, "[p]ublic records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours." This statutory mandate reflects Arizona's strong presumption in favor of open government and disclosure of public documents. Public policy favors subjecting agency action "to the light of public scrutiny" and ensuring that citizens are "informed about what their government is up to."
A requestor is generally entitled to review a copy of the "real record," even one maintained in an electronic format, subject to redactions necessary to protect against risks to privacy, confidentiality, or the best interests of the state. Thus, upon request, a public entity must search its electronic databases to identify and produce responsive records. But the entity need not tally, compile, analyze, or otherwise provide information about the information contained in existing public records, which would in effect create a new record in response to the request. Nor is the entity required to compile the data in a form more useful to a requestor….
Using a one-way cryptographic hash function to substitute a unique hashed value for protected information does not add to or change any of the underlying information (much less aggregate or analyze the data); it just hides a limited aspect of it. Redaction-by-encryption does not create anything new, but rather represents a better-tailored redaction process that eliminates only information that is in fact protected….
We acknowledge that redaction-by-encryption is different than traditional redaction-by-deletion (or redaction-by-obscuring-text-behind-a-black-box), and it may only be feasible in the context of electronically stored records. But when public records are stored in that format, differences occasioned by newer forms of data storage may call for differences in how the data is disclosed. For example, embedded metadata is an inherent part of a public record maintained in an electronic format, even though such metadata was nonexistent and effectively meaningless for the same record stored on paper. Accordingly, applying redaction-by-encryption as a more tailored form of redaction (even if made possible only by electronic storage) serves to ensure that the requestor receives access to the "real record" to the greatest extent possible.
The most analogous authority construing the federal Freedom of Information Act ("FOIA") bears this out. [Details omitted. -EV]
We note that redaction-by-encryption does not entitle Appellants to anything more than the public record as it actually exists….
Accordingly, to the extent the tables and fields in the existing databases (pre-redaction) are not in fact linked—and the record is not clear on that issue—AHCCCS is not required to create new links to serve Appellants' purposes. But to the extent the links exist pre-redaction, all Appellants' complaint seeks, and what they are potentially entitled to, is preservation of those links that form part of the "real record." …
To be sure, the journalists' request may ultimately prove unduly burdensome given the scale of data involved, and redaction (by encryption and otherwise) may ultimately prove insufficient to adequately anonymize the data given the type of data requested. But those questions require evidentiary development and must be considered on their facts, not as questions of law….
Plaintiffs are represented by Arizona State's First Amendment Clinic, and in particular by attorneys Jake Karr (who orally argued the case, and who's now at the NYU Technology Law & Policy Clinic), Gregg P. Leslie, and Zachary R. Cormier, and law students Jack Prew-Estes, Jake Nelson, Maria McCabe, and Vanessa Stockwill.
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