IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

TIMOTHY MCKEE, a single man, Appellee,

v.

PEORIA UNIFIED SCHOOL DISTRICT, a political subdivision of the 

state, Appellant.

No. 1 CA-CV 13-0374

FILED 12-02-2014

Appeal from the Superior Court in Maricopa County

No. CV2010-096000

The Honorable Karen A. Mullins, Judge

REVERSED

COUNSEL

Lewis Roca Rothgerber, LLP, Phoenix

By Mary Ellen Simonson, Kimberly A. Demarchi

DeConcini McDonald Yetwin & Lacy, PC, Tucson

By Denise M. Bainton

Co-Counsel for Appellant

Law Offices of William R. Hobson, Chandler

By William R. Hobson

Law Offices of Kevin Koelbel, PC, Chandler

By Kevin Koelbel

Co-Counsel for Appellee
2

Arizona Attorney General’s Office, Phoenix

By Paula S. Bickett

Counsel for Amicus Curiae State of Arizona

By Christopher P. Thomas, Phoenix

Counsel for Amicus Curiae Arizona School Boards Association

Holm Wright Hyde & Hays, PLC

By Matthew W. Wright, David K. Pauole

Counsel for Amicus Curiae Arizona School Risk Retention Trust, Inc.

Sims Murray, Ltd.

By William J. Sims, III, Kristin M. Mackin

Counsel for Amicus Curiae Arizona Municipal Risk Retention Pool

OPINION

Judge Kent E. Cattani delivered the opinion of the Court, in which 

Presiding Judge Jon W. Thompson and Judge Donn Kessler joined.

C A T T A N I, Judge:

¶1 Peoria Unified School District appeals the superior court’s 

judgment in which the court found that the District failed to promptly 

respond to Timothy McKee’s public records request. The District also 

challenges the court’s ruling awarding McKee $67,500 in attorney’s fees. 

For reasons that follow, we conclude that the superior court improperly 

assessed the “promptness” of the District’s response as it related to the 

production of individual documents, rather than in the context of the 

District’s overall response to a multi-pronged request for documents. 

Accordingly, we reverse the judgment and vacate the fee award.

FACTS AND PROCEDURAL BACKGROUND

¶2 McKee was a physical education teacher at a District high 

school. In May 2010, a student drowned during a swimming class while 

under McKee’s supervision. The District conducted an internal 

investigation, which ultimately led to the District seeking to terminate 

McKee’s employment. The details of the drowning and the District’s 

subsequent termination of McKee’s employment are set forth more fully in 

our recent decision upholding the termination. See Peoria Unified Sch. Dist. 
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Opinion of the Court

3

v. McClennen, 1 CA-SA 13-0263, 2014 WL 4473640, at *1–2, ¶¶ 2–10 (Ariz. 

App. Sept. 11, 2014) (mem. decision).

¶3 On August 24, 2010, after the District began to move forward 

with employment termination proceedings, McKee filed a public records 

request with the District seeking the following information and documents 

related to the drowning, the District’s investigation, and the termination 

process:

 The name of the attorney who will be representing the 

District at the [termination] hearing, including the 

agendas and minutes of board meetings at which the 

attorney was contracted and a copy of the contract.

 The name of the District’s investigator and any reports, 

notes, statements, documents, interviews, recordings 

and names of witnesses that are part of the 

investigation.

 The names and contact information for all of the 

students who were at the pool on May 12, 2010 at the 

time of the incident whether in Mr. McKee’s or 

[another teacher’s] class.

 The name and contact information for every staff

person and teacher at Ironwood High School.

 Any recording and/or minutes of the August 20, 2010 

Board meeting [at which the school board adopted a 

statement of charges for McKee’s dismissal], including 

the discussion in executive session regarding items 

2(A) and 2(D) on the agenda.

 An electronic copy of [District Superintendent] Mr. 

Santorelli’s letter dated August 16, 2010, which was 

hand-delivered to Mr. McKee on August 17, 2010 

including all Meta data.

¶4 Upon receipt of the records request, the District’s human 

resources director, Tahlya Visintainer, who was also the District’s custodian 

of records, began the process of responding. Visintainer initially gathered 

readily-available documents, such as the District’s investigative file that she 

herself had created and had stored in her office. She also contacted the 

school board and several other departments to ask for documents 
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Opinion of the Court

4

responsive to McKee’s request, including the business department for 

records relating to the retention of counsel, and the IT department for the 

electronic copy of the superintendent’s letter. In addition to gathering 

responsive documents, Visintainer coordinated review/redaction of 

confidential or otherwise protected information from the documents.

¶5 On September 3, eight business days after submitting the 

records request, McKee contacted the District by letter stating that he had 

not yet received a response and, “[b]ecause of the short timelines involved” 

for the administrative termination proceedings, renewed his request for 

“immediate production” of the public records materials.1 On September 9,

eleven business days after the request, McKee filed suit against the District 

in superior court alleging, among other claims, that the District had violated 

public records law by failing to respond to his request.

¶6 On that same date, the District sent McKee a letter detailing 

in part the status of his request, including the anticipated finalization and 

approval of the August 20, 2010 Board minutes, the availability (by 

September 13) of a recording of the public Board meeting, and the District’s 

position that the names and contact information of students present at the 

drowning were not subject to production as a public record because of 

confidentiality concerns. On September 13, the District provided McKee 

with the audio recording of the August 20 Board meeting. And on 

September 16, the District produced over 150 pages of the investigative file 

and records relating to the retention of counsel.

¶7 McKee contacted the District on September 30 with concerns 

that the investigative file provided on September 16 did not contain the 

notes of all witness interviews. Although Visintainer thought the full 

investigative file had been stored in a single location in her credenza (the 

source for the portion produced on September 16), she searched her office 

and found additional interview notes on a note pad in a desk drawer. The

District scanned and sent these additional notes to McKee on October 1, and 

sent a corrected version on October 2.

¶8 Later that day, McKee again contacted the District to ask 

about three witnesses for whom interview notes had not been provided. 

Visintainer searched her office again and found the notes of her interviews 

with the three additional witnesses on a separate note pad on her desk. She 

 

1 McKee’s employment termination hearing was scheduled to begin

on October 4, 2010.
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Opinion of the Court

5

scanned the remaining notes and, through counsel, provided them to 

McKee on October 3, 24 business days after the records request. McKee’s 

3-day employment termination hearing began as scheduled on October 4.2

¶9 Over one year into the public records lawsuit, McKee made a 

discovery request for production of “[t]he Log provided by ‘the school 

administration’ to the Glendale Police Department and referenced by 

Officer McMillan” in the police report attached to the statement of charges 

in the administrative proceeding. The District advised McKee that it did 

not have such a document.

¶10 Before trial, McKee withdrew his claims as to three of the six 

categories of documents requested, leaving at issue only the District’s 

investigative file, the names and contact information of students present at 

the drowning, and a record of the executive session portion of the August 

20 Board meeting. At the two-day bench trial, Visintainer testified that she 

had assumed all interview notes were in the main file in her credenza, that 

she produced the missing notes immediately upon becoming aware that 

they were missing, and that her failure to produce the complete file in the 

initial September 16 production was an unintentional mistake. Visintainer 

also testified that McKee’s discovery request for the student “log” was the 

first time she had heard of this document, and school administrators 

suggested to her that the document might be “a handwritten sheet of paper 

that had been passed around to the kids that had gone to a certain classroom 

and written their names and contact information down and then handed []

over to the police department that day.”

¶11 The superior court ruled that the District’s response to the 

request for the investigative file was not sufficiently prompt, and that the 

District should have, at a minimum, advised McKee that it had provided 

the student contact log to the police. The court ruled against McKee 

regarding his request for the District Board executive session minutes. The 

court then found that McKee had substantially prevailed on his public 

records claim and awarded him $67,500 in attorney’s fees. See Ariz. Rev. 

 

2 At the conclusion of the hearing, the hearing officer recommended 

against terminating McKee’s employment, but the District Board 

subsequently rejected that recommendation.
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Opinion of the Court

6

Stat. (“A.R.S.”) § 39-121.02(B) (authorizing award of attorney’s fees to 

individual who “substantially prevailed” in public records suit).3

¶12 The District timely appealed.4 We have jurisdiction under 

Article 6, Section 9, of the Arizona Constitution, and A.R.S. § 12-2101(A)(1).

DISCUSSION

¶13 Arizona law requires that public records be open to 

inspection by any person. See A.R.S. § 39-121. The public records law 

“open[s] agency action to the light of public scrutiny” and ensures that 

citizens are “informed about what their government is up to.” Scottsdale 

Unified Sch. Dist. No. 48 v. KPNX Broad. Co., 191 Ariz. 297, 302–03, ¶ 21, 955 

P.2d 534, 539–40 (1998) (citations omitted). “Access to a public record is 

deemed denied if a custodian fails to promptly respond to a request for 

production of a public record . . . .” A.R.S. § 39-121.01(E).

¶14 The District argues the superior court erred by (1) concluding 

that the District violated the public records law because of its delay in 

responding to McKee’s request for the investigative file and by failing to 

inform McKee that it had provided the student contact log to the police, and 

(2) awarding McKee his attorney’s fees. We review the court’s decision that 

McKee was wrongfully denied access to the District’s records de novo as an 

issue of law, although we defer to the court’s factual findings unless clearly 

erroneous. See Judicial Watch, Inc. v. City of Phoenix, 228 Ariz. 393, 395, ¶ 8, 

267 P.3d 1185, 1187 (App. 2011).5

 

3 Absent material revisions after the relevant date, we cite a statute’s 

current version.

4 McKee argues this court lacks jurisdiction to hear the appeal on the 

basis that the District did not timely file its notice of appeal. Before the case 

came at issue, McKee moved to dismiss the appeal on this same ground. A 

different panel of this court denied the motion; we decline to revisit this 

jurisdictional issue.

5 In his answering brief, McKee advances several arguments seeking 

affirmative relief from the superior court’s rulings. He argues that the court 

erred by determining that the minutes of the school board’s executive 

session were not subject to production, by awarding only a portion of the 

attorney’s fees he requested, and by dismissing his request for declaratory 
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Opinion of the Court

7

I. Investigative File.

¶15 Upon request, a custodian of records must “promptly” 

furnish copies of requested records, unless the records are accessible on the 

entity’s website. A.R.S. § 39-121.01(D)(1). The public records statutes do 

not specify a fixed timeframe in which production of documents is 

required. See id.; W. Valley View, Inc. v. Maricopa Cnty. Sheriff’s Office, 216 

Ariz. 225, 230, ¶ 21, 165 P.3d 203, 208 (App. 2007). Nor does case law specify 

a fixed timeframe. Instead, “prompt” has been defined for these purposes 

as “being ‘quick to act’ or producing the requested records ‘without delay.’” 

Phx. New Times, L.L.C. v. Arpaio, 217 Ariz. 533, 538, ¶ 14, 177 P.3d 275, 280 

(App. 2008) (citation omitted). Promptness is assessed within the context 

of the particular facts and circumstances surrounding each request. Id.

¶16 The superior court found that even the District’s initial 

September 16 production of the bulk of the investigative file—16 business 

days after McKee’s request—was not sufficiently prompt. The court 

reasoned that “[t]he file was already in existence in the office of 

[Visintainer] . . . . who created the file, had possession and control of the 

file, was personally aware that it was available for production, and had 

personal knowledge of its contents.” The court also found that Visintainer 

failed to conduct a reasonable search for the complete investigative file, 

which led to the subsequent production of missing interview notes (the 

absence of which the court suggested “should have been obvious to the 

District”) 24 business days after the initial records request.

¶17 The superior court analogized the disclosure in this case to 

that at issue in Arpaio, in which this court held that the Maricopa County 

Sheriff’s Office improperly refused to produce documents. After a 

newspaper requested five categories of documents relating to a specific 

incident and arrest, the Sheriff’s Office indicated that it would respond only 

when the investigation was complete, even though several of the 

documents requested were already available for production. 217 Ariz. at 

545, ¶ 41, 43, 177 P.3d at 287. The Arpaio court concluded that, because 

“reports of ongoing police investigations are not generally exempt from our 

public records law,” the Sheriff’s Office should not have refused to produce 

 

relief under the open meeting law. Because McKee did not cross-appeal 

from the superior court’s judgment, however, these arguments are not 

properly before us, and we decline to address them. See ARCAP 13(B)(3) 

(“The appellate court may direct that the judgment be modified to enlarge 

the rights of the appellee or to lessen the rights of the appellant only if the 

appellee has cross-appealed seeking such relief.”).
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Opinion of the Court

8

existing documents just because the investigation was not yet final. 217 

Ariz. at 545, ¶ 43, 177 P.3d at 287 (quoting Cox Ariz. Publ’ns, Inc. v. Collins, 

175 Ariz. 11, 14, 852 P.2d 1194, 1198 (1993); see also id. at 544, ¶ 38, 177 P.3d 

at 286 (“An agency may not wait to provide records already available until 

a final report is produced.”).

¶18 In contrast to the Arpaio case, here, the District did not rely on 

the fact of an ongoing investigation to delay production of any records. In 

fact, the District’s investigation was complete before McKee filed his public 

records request, and the District’s intended process was to compile the 

already-existing records to produce a comprehensive response to all six 

categories of McKee’s request.

¶19 In concluding that the District failed to timely provide readily 

available documents to McKee, the superior court incorrectly assessed the 

promptness of production of the investigative file in isolation, rather than 

in the context of McKee’s request for six categories of documents. The fact 

that one document may be easily accessed does not necessarily create an 

obligation to immediately turn over the document without waiting to 

compile other requested documents and without allowing time for review 

and redaction. Nothing in the statutes or in Arpaio requires that a public 

entity produce each individual responsive document (or category of 

documents) immediately, as long as the response as a whole is provided 

“promptly.” See A.R.S. § 39-121.01(D)(1).

¶20 Here, the record is clear—when considered in the context of a 

comprehensive response to McKee’s request for six distinct categories of 

documents, some to be gathered from different departments, and all of 

which were subject to review and possible redaction of confidential 

information prior to production—that the District acted reasonably and 

promptly in its efforts to respond to McKee’s request. By beginning a 

rolling response to McKee’s public records request just 16 business days 

after receiving it, and by completing the disclosure of relevant documents 

within 24 business days, the District acted promptly. Cf. 5 U.S.C. § 

552(a)(6)(A)(i) (setting 20-business-day deadline for federal agency to make 

an initial determination whether to comply with a request for documents 

under the Freedom of Information Act). 

¶21 Finally, although the District mistakenly omitted portions of 

the file in its initial disclosures, the District immediately corrected the 

mistake when McKee’s counsel asked about missing documents. Thus, 

even accepting the superior court’s conclusion that the District could have 

found the documents sooner, we conclude that McKee has not established 
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Opinion of the Court

9

bad faith on the part of the District, and the quickly-corrected mistake does 

not undermine the overall reasonableness/promptness of the District’s 

response. See Arpaio, 217 Ariz. at 541 n.5, ¶ 28, 177 P.3d at 283 n.5 (stating 

that, if custodian acted in good faith and made reasonable efforts, mistake 

would not establish a wrongful denial of access to public records). We 

therefore reverse the superior court’s ruling that the District failed to 

promptly provide McKee a copy of the investigative file.

II. Student Contact Information and Log.

¶22 Public records are those “reasonably necessary or appropriate 

to maintain an accurate knowledge of [a public entity or officer’s] official 

activities and of any of their activities which are supported by monies from 

this state or any political subdivision of this state.” A.R.S. § 39-121.01(B).

The Arizona Supreme Court has described three alternative categories of 

public records:

A public record is [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 v. Pinal Cnty., 215 Ariz. 1, 4, ¶ 9, 156 P.3d 418, 421 (2007) (quoting Salt 

River Pima-Maricopa Indian Cmty. v. Rogers, 168 Ariz. 531, 538–39, 815 P.2d 

900, 907–08 (1991)). Not all records created or kept by a public entity qualify 

as public records; instead, the “nature and purpose of the document 

determine its status,” and only those documents having a “substantial 

nexus” to the entity’s activities meet this content-driven test. Phx. 

Newspapers, Inc. v. Ellis, 215 Ariz. 268, 272, ¶ 16, 159 P.3d 578, 582 (App. 

2007) (quoting Griffis, 215 Ariz. at 4, ¶ 10, 156 P.3d at 421).

¶23 The law creates a strong presumption in favor of disclosure of 

public records. Griffis, 215 Ariz. at 5, ¶ 12, 156 P.3d at 422. This 

presumption may be overcome, however, where “privacy, confidentiality, 

or the best interests of the state outweigh the policy in favor of disclosure.” 

Id. at ¶ 13.
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Opinion of the Court

10

¶24 The superior court found that the District had created the 

handwritten log of students present for the drowning and that, “[b]ecause 

there was no evidence that the District retained a copy of the log, its 

obligations under the public records statute would have been satisfied by 

informing McKee that the log was in the custody of the Glendale Police 

Department.” The court found that, because the District did not do so until 

over one year after the records request, the District had denied McKee 

access to the requested record.

¶25 Preliminarily, the superior court improperly found that the 

log was the District’s record rather than a police record. In making that 

finding, the court relied on Glendale Police Detective McMillan’s report, in 

which the detective stated that “I was advised that the school personnel 

w[ere] passing out a log and having each child write their personal 

information down.” But Det. McMillan testified that (contrary to the 

superior court’s interpretation of his report) he did not know who had 

prepared the list or, more generally, where the list had come from. 

Similarly, other officers’ reports do not mention participation by school 

personnel, noting only that “[a] list was sent around the class for the 

students to put down names, addresses and phone numbers” or that “[t]he 

list was on notebook paper completed by each student putting down their 

information.”

¶26 Additionally, Det. McMillan acknowledged that the log was 

created “for the purpose of providing this to the police” and that it “was 

used for the police investigation.” Even assuming school personnel

assisted with or facilitated creation of the log, “the nature and purpose of 

the document determine its status.” See Griffis, 215 Ariz. at 4, ¶ 11, 156 P.3d 

at 421. Because this testimony tying the log to a police purpose was the 

only evidence presented on the matter, the record thus compels the 

conclusion that the log was not a District record. See id. at 4, ¶ 9, 156 P.3d 

at 421 (tying definition of public record to production of the record as part 

of the public entity’s public duty).

¶27 Finally, the court’s finding that the District should have 

advised McKee that the log had been given to the Glendale Police 

Department ignores the fact that McKee was already aware that the police 

had the log before he requested the contact information from the District. 

In fact, McKee obtained a copy of the log, albeit a redacted copy, directly 

from the Glendale Police Department prior to his employment termination 

hearing. His request to the District for a (presumably unredacted) copy of 

the document he successfully obtained elsewhere highlights McKee’s 

conflation of the public’s right to public records and his litigation-based 
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Opinion of the Court

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discovery needs. McKee’s discovery dispute regarding redaction of the log 

(and access to an unredacted copy) should have been addressed through 

his employment termination litigation with the District and was unrelated 

to whether the District (in responding to a public records request) should 

have told him something he already knew—that the Glendale Police 

Department had the requested document. See London v. Broderick, 206 Ariz. 

490, 495, ¶ 18, 80 P.3d 769, 774 (2003) (noting that the relevant consideration 

for a public records request is “the public’s interest in disclosure,” not 

someone’s “personal interests as an individual litigant”); see also Scottsdale 

Unified Sch. Dist. No. 48, 191 Ariz. at 302–03, ¶ 21, 955 P.2d at 539–40 (public 

records laws protect the public’s interest in transparency in government). 

¶28 Because public records law only requires production of 

“[p]ublic records and other matters in the custody of any officer” (not the 

records of a different entity), A.R.S. § 39-121, and because the court erred 

by conflating McKee’s personal litigation needs with disclosure required 

under Arizona’s public records law, we reverse the court’s ruling that the 

District violated public records law in its response to McKee’s request for 

student contact information.

III. Attorney’s Fees.

¶29 The superior court found that McKee had substantially 

prevailed against the District and awarded him $67,500 in attorney’s fees. 

See A.R.S. § 39-121.02(B) (authorizing discretionary award of attorney’s fees 

to requesting party who substantially prevails in public records litigation). 

Because we have reversed both facets of the public records claim on which 

McKee prevailed, we vacate the award of attorney’s fees.

¶30 McKee also seeks an award of attorney’s fees on appeal under 

A.R.S. § 39-121.02(B). McKee has not substantially prevailed on appeal, and 

we accordingly deny his request for fees.
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Opinion of the Court

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CONCLUSION

¶31 For the foregoing reasons, we reverse the superior court’s 

ruling and vacate the award of attorneys’ fees.